The Environmental Petitions Process - Enhancing Environmental Governance Through Transparency, Public Participation and Accountability

The Environmental Petitions Process: Enhancing environmental governance through transparency, public participation and accountability Liohn Sherer
Office of the Auditor General, Commissioner of the Environment and Sustainable Development
September 23, 2011 Word Count: 13,000
Abstract: Measuring the effectiveness of sustainable development policies and programs is a challenge for governments worldwide. The aim of this paper is to contribute to the measurement of Canadian efforts to achieve sustainable development by evaluating the Environmental Petitions Process (EPP). The EPP allows Canadian citizens to submit questions and requests regarding the environment and sustainable development to the Federal Government. The evaluation is based on three pillars of effective environmental governance: transparency, public participation, and accountability. Definitions of the concepts are developed with reference to the environmental governance literature, and their complex interrelationships are explored. The EPP contributes to transparency by providing the public with a mechanism to access a wide variety of information about decision-making rationales, processes and impacts. The public can use the Process to directly influence decisions and to feed information into the decision-making systems of both Government and Parliament. Finally, the Process gives both Parliamentarians and citizens the information they need to hold the Government accountable, and gives citizens a mechanism for doing so by requiring Ministers to respond to the publics questions. Despite the effective design and strong potential, the Process effectiveness is dependent on the participation of the public. Few petitions are received (the number peaked at 47 in 2008) and participation is declining (only 19 were received in 2010). As such, the value of the Process outputs is questionable at best. Further research is recommended to measure the extent of its contribution to sustainable development in Canada.
Contents
1. 2. 3. INTRODUCTION ................................................................................................................ 1 BACKGROUND ................................................................................................................... 2 THREE PILLARS OF ENVIRONMENTAL GOVERNANCE ....................................... 6 3.1. 3.2. 3.3. 4. 4.1. 4.2. 4.3. 5. 6. A. B. TRANSPARENCY ............................................................................................................. 7 PUBLIC PARTICIPATION ................................................................................................... 9 ACCOUNTABILITY ........................................................................................................ 10 TRANSPARENCY ........................................................................................................... 13 PUBLIC PARTICIPATION ................................................................................................. 16 ACCOUNTABILITY ........................................................................................................ 19
EVALUATING THE ENVIRONMENTAL PETITIONS PROCESS ............................ 13
CONCLUSIONS ................................................................................................................. 22 RECOMMENDATIONS FOR FURTHER RESEARCH ............................................... 24 DESCRIPTION OF INTERNSHIP ................................................................................ A-1 HOUSING DEVELOPMENT NEAR MISSION, BRITISH COLUMBIA ................. A-3
C. FOLLOW-UP PETITION ON A HOUSING DEVELOPMENT NEAR MISSION, BRITISH COLUMBIA ............................................................................................................. A-8 D. FOLLOW-UP PETITION ON A HOUSING DEVELOPMENT NEAR MISSION, BRITISH COLUMBIA ........................................................................................................... A-12 E. FOLLOW-UP PETITION ON THE SILVERMERE HOUSING DEVELOPMENT IN MISSION, BRITISH COLUMBIA........................................................................................ A-18 F. FOLLOW-UP PETITION ON A HOUSING DEVELOPMENT NEAR MISSION, BRITISH COLUMBIA ........................................................................................................... A-26 G. BIBLIOGRAPHY ........................................................................................................... A-31
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Environmental Petitions Process
1. Introduction Increased study in recent years of the policies needed to move towards sustainable development has shed new light on the shortcomings of national and international attempts to achieve it. These shortcomings include unaccountability of officials, lack of transparency, limited opportunities for participation and dissatisfaction with performance (Markell, 2006, p. 653). The result has been a growing emphasis on governance as a critical underpinning of policy success generally and environmental progress more specifically (Esty et al., 2005, p. 28). The concept of governance has come to refer to the totality of mechanisms and instruments available for influencing social change in preordained directions (Lafferty, 2004, p. 5). Once the available mechanisms and instruments are identified and implemented, the challenge becomes how to measure their progress and effectiveness. The aim of this paper is to contribute to the measurement of the success of Canadas efforts to achieve sustainable development by evaluating one of Canadas mechanisms for doing so, the Environmental Petitions Process (EPP). In their 1993 campaign platform, the Liberal party of Canada promised to strive to meet the vision of the 1987 Brundtland report (Liberal Party, 1993, p. 64). The proposed measures included a mechanism that would allow individuals to submit petitions requesting action when environmental policies or laws were being ignored or violated. In 1995, amendments to the Auditor General Act laid out the guidelines for the Environmental Petitions Process, establishing the Commissioner of the Environment and Sustainable Development (CESD), responsible for providing sustainable development monitoring and reporting, and the Environmental Petitions Process as one of his tools (Canada, 2010). Through the EPP, citizens can direct questions or requests for action to federal departments and agencies with environmental portfolios, and these departments and agencies are obligated to respond. One response to the question of how to achieve sustainable development has been recognition at the international level of three prerequisites for effective environmental governance. Principle 10 of the Rio Declaration on Environment and Development set out three requirements for effectively addressing environmental issues: Access to information, the opportunity to participate, and access to redress and remedy (UN, 1992). The Aarhus Convention, the primary affirmation of which is to protect the state of the environment and ensure sustainable development (UNECE, 1998, p. 2), emphasizes transparency, public participation, and accountability (Stec & Casey-Lefkowitz, 2000, p. 1 par. 3). The objective of this report is to develop clear definitions of the three pillars transparency, public participation, and accountability and to evaluate how the EPP can contribute to sustainable development in Canada by enhancing them. In doing so, this report will identify measurable outcomes of the Process, which can be used in the future to assess its progress and effectiveness. Canada is not immune to the indictments of democratic institutions mentioned above. It has been accused of having a deeply entrenched culture of secrecy and of favouring bureaucratic control over public participation (AIRTF, 2002; Warriner, 1997, p. 176). The EPP, despite its potential to address such accusations, has faded into obscurity in the years since its creation. Though the CESD submits annual status reports on the Process, it has never been the subject of independent review, and no significant changes have been
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made since its original implementation. It has gone essentially unnoticed by the academic and professional communities, and reviews of the environmental and governance literature return only a few brief and fleeting mentions of the CESD and the EPP. The EPPs absence from the critical study of environmental governance in Canada is a significant omission, one that must be remedied if the Process is to remain relevant and effective, and if Canada is to continue to progress towards sustainable development. This paper begins by providing a background and overview of the EPP and the CESD in Section 2. Section 3 develops the lens through which the EPP is evaluated in Section 4. Finally, Section 5 offers conclusions and recommendations for further research and analysis. 2. Background With the 1987 publication of the Brundtland Report Our Common Future, sustainable development was launched onto the world stage (World Commission on Environment and Sustainable Development, 1987). At the same time that the Brundtland Commission was publishing its report, Canadas National Task Force on the Environment and the Economy was publishing a report calling on Canadian government, industry, academics and NGOs to develop information-generation systems, public involvement processes and formal mechanisms for holding Ministers and departments accountable for environmentallysound development (National Task Force on the Environment and the Economy, 1987, pp. 5, 8). These recommendations were eventually adopted by the Government in amendments to the Auditor General Act in 1995. The primary products of the Office of the Auditor General of Canada (OAG) are audits: performance, annual, and special examinations (OAG, 2004, p. 89).1 The OAG defines a performance audit as a systematic examination of government activities that provides Parliament with information and recommendations designed to promote accountable government, good governance, and sustainable development (OAG, 2004, p. 13). An audits scope includes the examination of economy, efficiency, cost effectiveness and environmental effects of government activities. Audit reports are made public ensuring that citizens have access to the information and the recommendations provided to Parliament. The 1995 amendments established the Commissioner of the Environment and Sustainable Development (CESD) in the OAG, and within his mandate the Environmental Petitions Process (EPP). The goal was to increase government legitimacy and support a turn towards sustainable development by enhancing transparency, public participation, and accountability. The CESD is one of the first such offices in the world, and has been referred to as Canadas comparative advantage in the early twenty-first-century experiments with institutional change (Toner & Frey, 2004, pp. 214-215).
The Office of the Auditor General of Canada has one business line legislative auditing and six product lines: annual audit of the summary financial statements of the Government of Canada; annual audits of Crown corporations and other entities (federal, territorial, and international); special examinations of Crown corporations; performance audits of departments and agencies; environment and sustainable development monitoring activities; and assessments of agency performance reports. (OAG, 2004, p. 9) 2 of 26
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Canadas Access to Information Act (ATIA) was enacted in 1983, more than 10 years before the EPP, ostensibly to enhance government transparency. Freedom of information laws are a common response to transparency needs, and as of 2006 had been implemented in nearly 70 countries worldwide (more than half of those in the preceding decade) (Banisar, 2006, p. 6). Two significant distinctions explain why the petitions process was established despite, or to complement, ATIA. First, ATIA makes accessible only documented information such as letters, memos, e-mails, photographs and maps. As opposed to countries such as New Zealand and Denmark, unrecorded information telephone calls, oral conversations, or the contents of meetings is not covered. Second, to be truly transparent, decisions must include all the potentially relevant information that was taken into account in making them, in such a way that others are able to reconstruct the decision processes and intended outcomes (Drew & Nyerges, 2004, p. 34). If such information exists, then ATIA ensures its accessibility. Unfortunately, such information is difficult to compile, time consuming to maintain, and is unlikely to exist for the majority of government decisions. The EPP fills these gaps, as will be seen in section 4.1. The position of Commissioner of the Environment and Sustainable Development was created in 1995 following the recommendations of the First Report of The Standing Committee on Environment and Sustainable Development (1994). In response to this report, the government made commitments to openness, transparency and leadership in the pursuit of sustainable development (Minister of the Environment, 1994, p. 4). The Commissioner is responsible for a range of activities related to providing parliament with information, analysis and recommendations on the governments efforts to protect the environment and move towards sustainable development (CESD, 2008). These activities include auditing the environmental performance of federal departments, agencies, and crown corporations; assessing the federal governments sustainable development strategy and whether federal departments are meeting their sustainable development objectives; managing the environmental petitions process; and reporting on Canadas progress towards meeting its obligations under the Kyoto Protocol. The environmental petitions process is intended to be a way for Canadians to bring their concerns about environmental issues to the attention of the federal government (CESD, 2008, p. 5). It is managed by the Commissioner of the Environment and Sustainable Development, who reports annually to Parliament on the number, nature, and status of petitions, and on departmental compliance with the statutory requirements. Petitions may also become the subject of audits undertaken either by the CESD or other teams in the Office of the Auditor General. Environmental petitions are unlike other public petitions in that they do not need to have a minimum number of signatures, nor do they need to demand action. In fact, petitions are essentially no more than a letter addressed to the CESD. They can be sent by an individual or a group and can request a wide variety of responses, including: Investigations into alleged violations of federal laws or regulations; Action on matters of federal environmental management; Explanations of federal policy or involvement in particular issues; Reviews and improvements of federal laws; Responses to comments or suggestions;
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Explanations of actions in response to public commitments; Information on efforts to reduce environmental impacts of operations; or Outlines of how international commitments are being met (CESD, 2008, p. 7).
The Commissioner does not respond to petitions or validate, investigate, or substantiate the responses from Ministers. In managing the process, the Commissioner reviews petitions to ensure they are eligible, determines the relevant Ministers and forwards the petitions, and monitors the status of responses. Petitioners can identify explicitly the Ministers to which they would like their questions forwarded, but can also leave the letter open-ended and allow the CESD to forward questions to any and all relevant Ministries. The requirements for a petition to be considered admissible are minimal: They must be received in writing; They must be sent from a resident of Canada; and They must relate to an environmental matter in the context of sustainable development under the responsibility of a category I department. 2
Ministers are required to acknowledge receipt of the petition within 15 days and provide a response within 120 days. Once a year, the Commissioner provides Parliament with a summary of the petitions received and tables the petitions. The Commissioner also maintains an online registry of all petitions and responses received.3 Since the process was established in 1996, more than 350 petitions have been received (see Figure 2). The CESD can, and does, use petitions to inform the choice of entities to audit, case studies to examine, and criteria to assess. For instance, between 2007 and 2010 the Commissioner received twenty petitions associated with the use of science in decisionmaking,4 resulting in an audit of science-informed decision making to support environmental management planned for late 2011. In many cases, responses to petitions address the questions raised and satisfy the petitioners expectations (CESD, 2007, p. 78). In some cases, however, the issues raised warrant further investigation, and in these cases the CESD has the tools and powers necessary to delve deeper, seek answers, and make the results public. Because petitions are often submitted not by experts but by average citizens concerned with a local issue, clarity of context, information, and requests was a significant issue for many years. Unclear questions prevented ministers from responding in ways that satisfied petitioners. To address this issue, the CESD published a guide to writing petitions in 2008, which included advice, suggestions, and a standard template to follow. In that guide, the CESD also recognized that petitioners may find it difficult to identify the departments or agencies responsible for the issue in question. In those cases, the
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There are 28 category I departments as defined in Section 2 of the Act. A list of federal departments and agencies subject to the environmental petitions process can be found in (CESD, 2008, p. 6). 3 The petitions Catalogue can be accessed at http://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.html 4 Petitions no. 100b, 192, 194, 200, 203, 215, 220, 221e, 224, 238, 259, 262, 283, 290, 291, 292, 294, 297, 298, and 300. The petitions catalog can be found at http://www.oagbvg.gc.ca/internet/English/pet_fs_e_929.html 4 of 26
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CESD advised that petitioners use wording that would allow the Commissioner to forward the petition to additional departments or agencies. Petitioners are also advised to anticipate likely responses from ministers and to include follow-up questions, to avoid the necessity of submitting follow-up petitions and extending even more the timeframe for receiving the responses they want. The guide discourages petitioners from phrasing questions in a manner that can be answered with a simple yes or no, as those types of responses are both easier for the ministers to offer and unlikely to satisfy the petitioner. Other outreach attempts to raise awareness of the EPP have included a video posted on YouTube.5 To better demonstrate the characteristics of a petition and responses, consider the following example. The petitions and responses are included in the Appendix. In 2003, the Genstar Development Company proposed to develop 100 single family residences on Silvermere Island, B.C., and the adjacent peninsula (Bertelsen, 2003). The island was part of an ecosystem that hosted an annual salmon run and spawning ground and was home to a number of endangered species and species at risk. In July 2004, an area resident submitted a petition claiming that the proposed development would cause significant damage to the ecosystem. The majority of the petitions two pages consisted of background information. It included no specific questions, but rather the statement that the petitioner believed a statutory review/Canadian Environment Assessment Act review is required before any further environmental damage is done (Lyster, Housing development near Mission, British Columbia: No. 122A, 2004). The joint response from the Minister of the Environment and the Minister of Fisheries and Oceans did not address the majority of the petitioners concerns (environmental degradation, loss of biodiversity, threats to fish habitat), but focused instead on the statutory requirements for environmental assessments and how, in the case, none of those requirements had been triggered (Dion, 2004). In the ensuing years, the petitioner has submitted four follow-up petitions. The second petition was one page long, and similarly did not contain explicit questions. The Department of Fisheries and Oceans (DFO) response to the second petition, submitted in January 2005, noted that DFO had in fact objected to a proposal by the proponent to conduct a large scale drawdown of the Silvermere Lake:
With respect to the large scale drawdown, it was DFOs assessment that the Environmental Management Plan did not provide sufficient information to ensure a clear understanding of the extent of the works and potential impacts to fisheries resources in Silvermere Lake, and the Stave River watershed. The proponent was requested to submit further detail regarding project design and mitigation. (Regan, 2005)
The response also noted that while no requirement for a federal EIA had been triggered, the Department would complete the appropriate reviews if and when they became necessary. The third petition was submitted in February 2006, again without explicit questions and focusing on the necessity of an EIA, to which the Ministers responded that the proponent
http://www.youtube.com/watch?v=rqqo4AO4WZE 5 of 26
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was in the process of preparing an environmental assessment (Lyster, Ambrose, Hearn, & Cannon, 2006). The fourth and fifth petitions were submitted in March 2007 and August 2010, respectively. Each contained explicit questions directed at specific Ministries, addressing a variety of concerns including EIAs, wildlife impacts, and environmental degradation. The response to the fourth petition was detailed and addressed each question individually. At the time of writing, the response to the fifth petition had not yet been published to the online catalogue. This example parallels the evolution of the petitions process. Between 2003 and 2010, petitions progressed from short letters expressing concern with an activity to include detailed background information, clear statements of concern, and explicit questions requesting detailed responses and actions. However, it also shows the frustration that can be experienced by petitioners. Six years later, the petitioners questions and concerns have still not been satisfied, the proponent continues to develop the proposal, and the alleged environmental degradation persists. The 2005 study Benchmarking National Environmental Stewardship used an environmental sustainability index based on 21 indicators. Of the 21 indicators, environmental governance correlated most strongly to the 76 underlying variables, suggesting that countries that pay the most attention to environmental policy are more likely to produce successful environmental outcomes. The study ranked Canada 24th out of 146 in environmental governance, and made no mention of the Environmental Petitions Process (Esty et al., 2005, p. 371). One reason the process goes unnoticed by the international community may be that there are no other mechanisms to which it can be directly compared. The United States has no environmental commissioner or ombudsman and no formal process for the public to provide input into or request information about environmental matters. Nor are comparable petitions processes or environmental ombudsmen identified in Scandinavia, often seen as a bastion of environmental progress. The response from a Swedish contact is telling, noting that the closest comparison to the EPP in that country is a wellentrenched culture of transparency and strong access to information legislation. Petitions committees exist in many Parliamentary democracies, though none that are dedicated solely to environmental matters or are as well defined as the Canadian example. Environmental commissioners exist in Ontario and New Zealand, but there are significant differences with these institutions as well. Many of these comparable, though different, mechanisms will be presented in the following sections as examples, or to provide a contrast or frame of reference for the EPP. 3. Three Pillars of Environmental Governance This section provides the lens through which the EPP will be evaluated in Section 4. It does so by defining the concepts of transparency, accountability, and public participation in reference to the environmental governance literature, as well as other literatures related to sustainable development and environmental policy. The concepts consistently reappear across the literature in different forms and different contexts, but almost always in relation to each other. Baumert and Petkova, for instance, interpret the term public
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participation as referring to a set of core principles that, broadly speaking, promote transparency, public engagement, and accountability (2000, p. 2). Voisey and ORiordan identify the same three ideas as requirements for institutional movement towards sustainable development (1997, p. 48). Their relationship is summed up best by Hood:
Transparency in the sense of general disclosure of information about the affairs of government provides necessary raw material for democratic accountability because it enables concerned citizens and interest groups to be sufficiently informed about the activities of executive government to be able to feed their views effectively into the legislature or other forums. (2010, p. 992)
Due to the sheer extent of the literature exploring these three concepts, the work reviewed for and presented in this paper is by necessity not exhaustive. Rather, the goal is to define the terms in relation to effective environmental governance, and to explore them in a way that makes their interdependencies and interrelationships are clear. 3.1. Transparency Transparency has been referred to as the buzzword solution to the gamut of governance issues together known as the democracy deficit (Hale, 2008, p. 73). It has been credited with a catalogue of benefits, including enhancing the equity, effectiveness, and efficiency of participation; narrowing the gap between the public and decision-makers; leading to more informed decisions; empowering the weak; and holding decision-makers accountable (Drew & Nyerges, 2004, p. 35; Gupta, 2010, p. 1). Carolyn Ball has traced its evolution from an etymological perspective, concluding that the term has many meanings, but overall is about open decision-making and the ease of access and use of government and nonprofit information (2009, p. 303). While a significant body of literature has been developed around the concept of transparency, no single, formal definition of the term is offered in relation to environmental governance (Drew & Nyerges, 2004, p. 36). Principle 10 of the Rio Declaration reads that each individual shall have appropriate access to information concerning the environment that is held by public authorities but does not define of what such information consists nor how it should be made accessible (UN, 1992). The Aarhus Convention, despite providing detailed definitions of Environmental Information and how and under what circumstances it shall be made accessible, as well as making many explicit references to the desirability of transparency, does not define the term itself (UNECE, 1998). At its most fundamental level, though, transparency is about the normative right to know (Gupta, 2010, p. 4). Drew and Nyerges (2004) identify a range of concepts often discussed in association with transparency, from which they isolate seven objectives including accessibility, accountability, and openness. 6 A more useful context in which to place transparency for the purposes of this paper is offered by the first pillar of the Aarhus Convention, Access to Information. In this context, two forms of access to information are defined: Passive, where public authorities provide information in response to requests; and Active, where
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The seven objectives for transparency are: Integration into broader decision context; Accessibility; Logic and rationale; Accountability; Truth and accuracy; Openness; Stakeholder involvement; and Clarity (Drew & Nyerges, 2004, p. 36) 7 of 26
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authorities proactively disseminate information (Stec & Casey-Lefkowitz, 2000, p. 6). Weil et al take this differentiation one step further, defining the former as sunshine laws which impose transparency on decision-making processes, and the latter as regulatory transparency policies under which government collects and transmits to the public information about organizations processes, services, or products (Weil et al., 2006, p. 156). Canadas Access to Information Act is one example of a sunshine law. The Citizen Submissions Process of the Commission for Environmental Cooperation (CEC) can also be considered a sunshine mechanism (though not a law). The CEC publishes factual records: Objective, impartial information about the background of an issue, the Partys legal obligations, the Partys actions in regard to its obligations, and other facts relevant to the complaint (CEC, 2000). Aspects of regulatory transparency policies are common to all of the comparable processes I examined, in the form of online catalogues or registries of requests which can include the original request, its status, actions taken, and responses received.7 These registries are publicly accessible, and are generally not the only output of the process but serve to complement the processes other mechanisms for encouraging good environmental governance. Other examples include the Toxics Release Inventory (TRI) in the United States and the National Pollutant Release Inventory (NPRI) in Canada, and the Aarhus Conventions Environmental Democracy Clearing House. A primary distinction between the two types of transparency, beyond their triggers, is that whereas regulatory policies have well-defined aims and seek to change behaviours in specific ways, sunshine laws guarantee transparency more generally, allowing the requester to determine the goal of each request (Weil et al., 2006, p. 156). For instance, the goal of Swedens Principle of Public Access is broadly to guarantee an open society with access to information about the work of the Riksdag [Parliament], Government and government agencies (Sweden, 2004). The TRI, on the other hand, has a public policy objective of reducing toxic pollution (Weil et al., 2006, p. 160). Regardless of their aims, both groups of transparency policies have one thing in common, and this is that the systems themselves do not specify whether, when, or how organizations should change their practices. Rather, they provide the information that clients and managers need in order to make those decisions (Weil et al., 2006, p. 158). This paper is concerned with the first, so-called Passive, category: Mechanisms through which governments are required to respond to individuals requests. In Canada, the EPP and ATIA represent two parallel mechanisms in this category. As we will see, these processes enhance public participation, hold governments accountable, and contribute to sustainable development overall.
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Scotland: http://www.scottish.parliament.uk/business/petitions/open/index.htm; Germany: https://epetitionen.bundestag.de/; Ontario: http://www.ebr.gov.on.ca/ERS-WEB-External; CEC: http://cec.org/Page.asp?PageID=751&SiteNodeID=250; New Zealand: http://www.pce.parliament.nz/publications/submissions-and-advice/; European Commission: https://webgate.ec.europa.eu/transparency/regrin/consultation/listlobbyists.do;REGRINSID=8vT9Nn3TLW 1F2cMLfZG1Yz2MH2LbN1vJMHkpMNr0bwpgnGqKGF3w!-109176905?reset= 8 of 26
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Despite the grand hopes for transparency, information does not in and of itself guarantee a shift towards sustainable development. While information can empower individuals to exert influence on decision-makers (Dingwerth & Eichinger, 2010, p. 74), disclosure policies can be designed in ways that sidestep real, meaningful citizen empowerment (Florini, 2008). This, it has been argued, is the case with Canadas Access to Information Act (Worthy, 2010, p. 567). To truly enhance environmental governance, the information made available by sunshine laws must be wielded by the public to affect change (Fuentes, 2008, p. 2; Flscher, 2007, p. 100). Public participation has been highlighted as another strategy for achieving many of the same goals as transparency, including increasing government legitimacy and accountability, strengthening democratic principles, and enhancing equity (Markell, 2006, p. 653; Warriner, 1997, pp. 176, 181). This second pillar operationalizes the first: information gained through improved transparency leads to changes in the actions of policy-makers when it is used by the public to bring about those changes (Weil et al., 2006, p. 156). At the same time, this second pillar relies on the first: true participation is possible only when the public has information about the government, its policies and its decision-making practices (Stec & Casey-Lefkowitz, 2000, p. 6) (Banisar D. , 2006, p. 6). Alone, neither is sufficient, but in conjunction with transparency, public participation offers the substantive improvements in environmental performance identified by Gupta to inform, empower, and improve (2010, p. 4). Significant study of participation is conducted at the project-specific level within environmental impact assessment, which faces recurrent criticism for outcomes that are unfair, unjust, and inequitable (Lawrence, 2005). The insights revealed by this literature have broader implications for the more ongoing, process-level concerns in public policy and governance (O'Faircheallaigh, 2010). Regardless of the discipline, the work falls into two distinct categories: distributive justice, which is concerned with the fairness of the outcomes of decisions; and procedural justice, which is concerned with the fairness of the decision-making process (Illsley, 2003). Broadly defined, public participation is about how people communicate their views to policymakers in a purposeful and organized manner, and can refer to anything from voting in general elections to public demonstrations (Warriner, 1997, p. 173). In the context of environmental governance, however, it is more useful to conceive of public participation as structured mechanisms whereby citizens influence decisions about plans, policies and programs. Depending on the body of literature, the core differentiating components of participation can include the degrees of participation (as in Arnsteins hierarchical ladder), the direction of communication flows, or the objectives for which participation is used (Reed, 2008). The environmental governance community has often cited Langtons typology of participation (1978, p. 21), which divides participation mechanisms into four classes based on the nature of the roles played by the citizens: (1) Obligatory participation; (2) Electoral participation; (3) Citizen involvement; and (4) Citizen action (Warriner, 1997). In this paper I examine a group of mechanisms that falls between Langtons third and fourth levels: processes that are controlled and managed by government, but initiated by
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individuals or groups of citizens. The major purpose of the former is to improve decisionmaking, and of the latter to influence decisions (Langton, 1978). The degree to which an environmental governance mechanism encourages or enhances participation is dependent on many factors. One such factor is a central point of contact for citizens. Germany, Scotland, the CEC, New Zealand, Ontario and the EU each have a central point of contact, which is responsible to varying degrees for receiving petitions and complaints from citizens, forwarding them to appropriate bodies for response, and following up where appropriate.8 These bodies enhance participation by simplifying the submission or complaint procedure and making it more accessible. Where such bodies do not exist, it becomes more difficult for citizens to participate. In Quebec and the United Kingdom, for example, where parliamentary petitions must be submitted through members of parliament, potential petitioners must identify members of parliament who might be willing to accept and present the petition, and contact the members directly (Quebec, 2010; Cavanagh et al., 2000, p. 71). Another factor that affects how a process enhances public participation is the definition of a request. Under Ontarios Environmental Bill of Rights (EBR) for instance, citizens can apply for either a policy review or an investigation of an alleged violation (Ontario, 1993).9 This allows them to directly influence policy-making and environmental management processes, but prevents them from submitting other types of requests. In contrast, the Scottish Parliament must consider any petition addressed to it (Scottish Parliament, 2009).10 This allows petitioners to request, for example, explanations of how a decision was reached (enhancing procedural justice) without precluding the types of requests explicitly identified under Ontarios EBR. The trade-off is between efficiency and flexibility: A system with an explicit regulatory aim may be more efficient than an open system at achieving that specific aim, but an open system may be effective at addressing a broader range of governance issues. The results of enhanced public participation fall into two categories: improvements in decisions themselves and improvements in the decision-making process. The concept of procedural justice suggests that they are equally important, and transparency helps to shed light on both. The study of public participation is about how citizens use information to engage in the decision-making process and influence decisions and their outcomes. Participation mechanisms, together with enhanced transparency, allow the public to hold the Government accountable, as will be seen in the next section. 3.3. Accountability Just as with transparency and public participation, accountability has been adopted as the vehicle for a wide range of governance improvements, as described by Abels in her exploration of the links between citizen involvement, legitimacy and accountability (2007, p. 106). Again, the relationships between accountability and the other two pillars are complex and multidirectional. Transparency itself becomes a tool for holding the powerful accountable (Dingwerth & Eichinger, 2010, p. 74), and citizen participation
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(German Bundestag) Basic Law of the Federal Republic of Germany: Article 45c(1); (Scottish Parliament, 2009) Rule 6.1.5(g); (CEC, 2000); (New Zealand, 2011); (Ontario, 1993) Article 74.(1); (EC, 2010) 9 Articles 61.(1), 74.(1) 10 Rule 15.4.1 10 of 26
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often becomes equated with better accountability (Abels, 2007, p. 103). Accountability was identified by Canadas Standing Committee on Environment and Sustainable Development as one of the key principles for promoting sustainable development in federal decision-making (Minister of the Environment, 1994, p. 4). Bovens has described it as a principle filled with good intentions, loosely defined concepts, and vague images of good governance (2006, p. 7). In contrast to the first two terms, though, the study of accountability is well developed, and a number of formal definitions has been offered (Fearon, 1999, p. 55; Przeworski et al., 1999, p. 10; Schedler, 1999, p. 17). In attempting to provide a definition of government accountability that avoids the ambiguity and confusion of defining the term based on its anticipated results, Philp offers the following:
A is accountable with respect to M when some individual, body or institution, Y, can require A to inform and explain/justify his or her conduct with respect to M. (Philp, 2009, p. 32)
What is unique about Philps definition is the absence of explicit sanctions and rewards. Across a wide array of accountability mechanisms, the ability to sanction plays a central role: from the bottom-up, the public can choose not to re-elect governors who have failed; from the top-down, Parliaments can defeat governments and governments can replace ministers. According to Philp, though the possibility of reward or sanction may be desirable for further enhancing accountability, it is not essential to accountability per se. Philp builds on Bovens exploration of accountability. Bovens argues that though sanctions are prerequisites of an accountability relation, the term itself is too narrow and exclusionary, and prefers instead the broader expression the actor may face consequences (Bovens, 2006, pp. 10-11). As opposed to formal sanctions, such consequences can be informal or implicit, including requiring decision-makers to explain or justify their conduct. The effectiveness of such informal sanctions or consequences may be an extension of the importance of procedural justice, the predominance of process over outcome in establishing legitimacy. While one might assume that the outcomes of decisions are the critical factor in influencing perceptions of legitimacy and thus that sanctioning the makers of poor decisions is a prerequisite for holding decision-makers accountable this is not necessarily the case. In fact, the work on procedural justice calls this assumption into question, and asserts that people are just as, if not more, concerned with how decisions are made and the fairness of the process (Markell, 2006, pp. 677-678). Understanding of the reasons behind decisions can generate support for them and reduce dissatisfaction (Banisar D. , 2006, p. 7). As such, holding decision-makers accountable and safeguarding the legitimacy of government decisions may depend more on exposing the decision-making process requiring decision-makers to inform and explain or justify their conduct than on punishing or rewarding them for the outcomes of those decisions. Abels introduces the term accountability communication, referring to communication that includes explanations, justifications, debate and the possibility of questions and answers (2007, p. 106). Traditionally, government has been subjected to political accountability: Ministers answering to Parliament on a retrospective basis to justify the actions they have taken
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(arrow 5 in figure 3) (Joss, 2010, p. 409). Governments worldwide are increasingly being subjected to conceptions of managerial accountability: Downward responsibility to clients (citizens), in both retrospective and prospective manners, on a performance basis (arrow 6 in figure 3) (Joss, 2010, p. 409). For instance, as part of Devolution, Scotlands petitions system was designed in the late 1990s specifically to make parliament more accountable to the people (Carman C. , 2010, p. 735). The citizen submissions process of the CEC was created as well to make North American countries more accountable with regards to their environmental laws (Markell, 2006, p. 656). The mechanisms researched for this paper petitions, complaints, and compliance procedures all perform the function of requiring governments to inform the public or to explain and justify their actions. Where the obligation to respond is strongest, the contribution to accountability is greatest. In Scotland and Germany, though the Petitions Committees must consider all admissible petitions, they are not required to take any further action, and where petitions are not pursued, petitioners may be provided only with notice that the matter has been closed.11 In these cases, holding the Government to account is at the discretion of the Committee, not the citizen. In Quebec and the United Kingdom, where petitions must be submitted to members of parliament, MPs are under no obligation to accept petitions, the result being that there is no guarantee that citizens are able to communicate their concerns to the Minister, department, or body in question (Quebec, 2010; Cavanagh et al., 2000, p. 71). In contrast, requests in Ontario must at the least be forwarded to the appropriate Ministry or Committee, and citizens are provided with either the results of subsequent investigations or an explanation of why no further investigations were undertaken (Ontario, 1993).12 The obligation to respond goes hand-in-hand with mandated or suggested timelines. Though in most cases the systems I examined guaranteed that the submitter would receive a response, the nature and timeliness of the response varied, and as a result the nature of the systems contribution varied. While some of the comparable mechanisms offer the possibility of sanctions from the European Commissions capacity to litigate to the CESD's power to make recommendations to Parliament none include explicit powers to sanction. Regardless, it is by no means self-evident that this characteristic impedes their effectiveness at holding governments accountable. Government accountability is about more than sanctions. It is about responsibility to the people affected by decisions, and in Canada, to the Parliament that charges Government with those decisions. As we will see, the mechanisms allow the public to make effective use of the information to which they provide access, and in doing so contribute to the global governance movement towards sustainable development. This section identified three concepts as pillars of environmental governance, and defined them in the context of that literature. While transparency, public participation and accountability have each been highlighted as the key to effective environmental policies,
11
(Scottish Parliament, 2009) Rule 15.4 Bringing petitions: "1. The parliament shall consider, in accordance with the provisions of the Rule and Rules 15.5 to 15.8, any petition addressed to it. ; (German Bundestag) Principles of the Petitions Committee governing the Treatment of Requests and Complaints: Article 7.14.7 12 Articles 77 80 12 of 26
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here I have demonstrated that this is possible for all three only in conjunction with each other. Transparency provides the information which the public can use to engage in the decision-making process, influence decisions, and hold the Government accountable. Based on this, the next section will evaluate the EPP to determine how it contributes to all three pillars. 4. Evaluating the Environmental Petitions Process This section evaluates the EPP through the lens developed in Section 3, examining how each facet of the Process enhances transparency, public participation, and/or accountability. I address each pillar in order, first exploring how the EPP contributes directly, and then elaborating on how housing the Process within the Office of the Auditor General allows the CESD to enhance the process contributions to each pillar by integrating petitions into his other roles. 4.1. Transparency The contribution of the petitions process to transparency in Canada is, to some extent, self-evident: Fundamentally, the process is about getting information to the public, or rather, allowing the public to get information from the government. The distinctions drawn in Section 2 between passive transparency / sunshine laws on the one hand, and active transparency / regulatory disclosure on the other, are based on two characteristics: The primary actor, and goal specificity. In the case of the petitions process, neither is clear cut. Regarding the first characteristic, the primary actor, petitions are submitted by individuals and responded to by ministers, suggesting that the process is passive. Petitions and departmental responses are subsequently published in the petitions catalogue,13 a proactive disclosure that blurs the line between passive and active. However, inasmuch as the petitions catalogue invokes aspects of active disclosure, the Auditor General Act does not go far enough in establishing an active publication role within the petitions process. There is no regulatory definition or specification of information that must be published on a routine basis. Rather, it is left to citizens to request information from the Government, which plays an exclusively passive role. The information that gets published through the process is entirely dependent on the activity of citizens. Perhaps a better analogy for the line between active and passive is not that it is blurred, but rather that it is redrawn to include disclosure in the passive camp. Regarding the second characteristic, goal specificity, though there is no specific regulatory aim to the process, its scope is limited to specific environmental and sustainable development issues (CESD, 2010). While the regulatory improvements the process was designed to achieve are ill-defined if at all, the general goal of the process can be narrowed down: The environmental petitions process can play a key role in ensuring good federal management of environmental and sustainable development issues (CESD, 2008, p. 1). To place it in context, the EPP falls somewhere between the petitions processes of Germany and Scotland, which are open to any and all matters under parliamentary jurisdiction, and the citizen submission process of the CEC, which is
13
The petitions Catalogue can be accessed at http://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.html 13 of 26
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restricted to studying matters that advance the ten objectives set out in the NAAEC (NAAEC, 1993).14 The Scottish Petitions Committee received 960 petitions between 1999 and 2006, distributed across 24 subject areas. Of those, just over six percent (61 petitions) related to the environment (Carman C. J., 2006). In contrast, the CESD received 170 petitions between 1999 and 2006, all related to environment and sustainable development. At the same time, the EPP has avoided the criticisms directed at the citizen submissions process that the scope of investigations is so severely limited that they no longer address the submitters main concerns (Garver, 2008). By addressing a range of goals narrower than that of Scotlands petitions committee but broader than that of the CEC, the EPP may be able to target issues specifically relating to sustainable development in a broad enough manner that it remains relevant and effective. The EPP fills two gaps left by ATIA, as discussed in section 2. The first is access to information that may not have been recorded: information transmitted in phone calls, oral conversations, or meetings. In this case, the two processes complement, rather than compete with, one another. While Ministers sometimes refer petitioners to recorded documentation available through Access to Information requests,15 the petitions process is intended to provide views and positions, and the majority of responses to petitions are explanatory rather than documentary (CESD, 2009, p. 18). The second gap, insight into the decision-making process, is filled explicitly by the petitions process, at least for decisions related to environment and sustainable development. The petitions process can be used to directly address and question decisionmaking rationales.16 Since petitions and responses are made publicly accessible, the process itself contributes to the creation and publication of the type of information that makes decisions transparent. In addition to making decisions more transparent by allowing citizens to question the rationales and access undocumented information that contributed to them, petitions can be used to make decision-making processes on the whole more transparent. By drawing attention to situations where decisions are consistently opaque, petitioners can encourage the government to make the processes more transparent. A petition submitted in 2002 dealt with cases in which a recommendation by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) to add a species to the List of Wildlife Species at Risk would be ignored (Millls & Wiwcharuk, 2002). At the time, no criteria for such decisions were publicly available, and in his response, the Minister stated that guidelines for such decisions were in development. In 2005, the CESD followed up with the Minister, confirming that draft guidelines had been prepared in 2003, presented in November 2004, and were to be finalized in 2006 (CESD, 2005, pp. 13-14). Whatever the theoretical potential for the Process to enhance transparency in Canada, certain realities suggest that this potential may be limited. With few exceptions, the Process goes essentially unmentioned in the academic and institutional literature. The plethora of studies on transparency, governance processes, and engagement in sustainable
14 15
Art14:2.(b) ;Art1:(a)-(j) For examples of referrals to ATIA, see (Whelan, 2002); (Clement, 2007) 16 For examples, see (Lischewski & Love, 2005); (Blodgett, 2004) 14 of 26
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development either ignore or are simply ignorant of the EPP. Beyond the literature, a 2010 Parliamentary study found that constituents outside of parliament had a low awareness of petitions (Stokes, 2010, p. 9). Transparency can only be effective if there are receptors capable of processing, digesting, and using the information (Heald, 2006, p. 35). If the public, academics, and professionals who might effectively make use of the information revealed through the process are unaware of it, then the value of its outputs and its overall contribution to transparency may be questionable at best. The Commissioners annual petitions report to Parliament ensures the transparency of the process itself while enhancing its contribution to transparency in environmental governance. The report contains basic information about the quantity of petitions received, their subject matter and their status, and highlights emerging issues that attract numerous petitions issues that might otherwise go unnoticed (Canada, 2010, p. 14).17 The report also includes an audit of the process itself, exposing weaknesses and shortcomings. The 2004 report revealed that although departments were committing to launch investigations into issues raised by petitions, petitioners were not being informed of the outcomes of these investigations (CESD, 2004, p. 1). It also noted that some departments were portraying their petition responses more positively than was warranted. These features are similar, though not identical, to other parliamentary petitions processes. The Scottish Parliamentary Petitions Committee, for example, has a wide range of actions it can pursue in addressing petitions (Carman C. J., 2006, pp. 2.3-18). It submits annual reports and has conducted inquiries into the petitions process, though it does not do so annually (Scotland, 2009). It may consult with or request information from other government bodies, but it has no official mandate to conduct audits. The petitions process contributes to transparency by providing citizens with access to information, requiring Ministers to respond to the questions and concerns of citizens, and making all the information public. The CESD furthers this goal by investigating the issues where warranted, analysing and interpreting the results of the process, and exposing its shortcomings to the public. However, awareness is not only a problem externally (as mentioned above), but internally as well. In a survey of seven Parliamentarians conducted as part of the 2010 study, only two identified petitions as part of the CESD mandate (Stokes, 2010). As was noted in that study, this draws into question the value of the contributions made to transparency by the tabling of the petitions and the CESDs annual report on petitions. That study noted that overall, the visibility of the Commissioners office appears to be low, with poor to medium understanding of the Offices mandate (Stokes, 2010, p. 9). This may dilute the essence the ability of the Commissioner to enhance the contribution of the EPP to environmental governance. The Environmental Petitions Process provides the public with a mechanism to access a wide variety of information, including the rationale for a decision, the process used to make decisions, or results and impacts of those decisions. However, though the EPP provides that mechanism, there are questions about the extent to which that mechanism is
17
See, for example (CESD, 2008, p. 7) 15 of 26
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used. The next section explores how the public engages with the process and the information that it makes accessible. 4.2. Public Participation The Standing Committee on Environment and Sustainable Developments 1994 report noted that the public should be given the opportunity to provide input into and to inform the policy debate. In contrast to most public participation mechanisms, which provide for citizen input into or involvement with a particular project or decision, the Environmental Petitions Process is an on-going mechanism that allows the public to participate in the general management of the environment and sustainable development in Canada (CESD, 2009, p. 1). On Langtons scale, described in Section 2.2, it falls in between Citizen Involvement and Citizen Action. Public participation is facilitated by the EPP both by improving decision-making processes and by influencing decisions. Citizens can directly influence decisions by making explicit comments and suggestions to Government on decision-issues, as well as in other ways, for example by requesting reviews and improvements of laws (CESD, 2008). Citizens can also improve the decision-making process simply by generating more information for the Government to use. In addition to the downward flow of information created by the transparency mechanism of the EPP, information flows upwards from petitioners to the Government and Parliament (CESD, 2009, p. 1). By making known the issues that concern them, expressing their opinions on the issues, and providing information relating to them, citizens can improve the information base on which Government makes decisions.18 The developing shale gas issue provides examples of both avenues for participation through petitions. As an example of explicit requests influencing decisions, a petition received by the Quebec National Assembly dated January 2011 demanded a moratorium on shale gas exploration in the province (Anonymous, 2011), which led to the Quebec government freezing new exploration and development until a full study on the environmental impacts could be completed (Marotte, 2011). Two petitions received by the CESD display how information flows upwards from citizens to Parliament and Government, improving the decision-making process. Petitions number 307 (Breton, 2010) and 308 (Bdard, 2010) concerned the federal governments role in regulating the shale gas industry in Quebec. These petitions were part of a general public outcry which led to Parliamentary debate on the matter, and statements by the Environment Minister which indicated that the federal government was examining its responsibilities in regulating the issue, which would normally fall under provincial jurisdiction (Canada, 2011). In the latter case, petitions did not influence a decision, but impacted the decisionmaking process.
18
For an example of the impact of public participation through petitions, see Military dumpsites off Canadas Atlantic coast (CESD, 2004, pp. 14-19) 16 of 26
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Parliament
4 5 Political P Accountability
CESD
Government
6 1
Managerial Accountability
Citizens
Figure 1 Multi-directional participation & accountability through the Environmental Petitions Process
While the flow of information is bidirectional, form citizens to Government (public participation) and from Government to citizens (transparency) the impacts of public participation are multidirectional (see Figure 1). Petitioners can influence government decision-makers directly, in a bottom-up direction, by making requests and expressing their opinions (arrow 1). They can also influence Parliamentary policy-makers in the same way, as petitions are tabled annually in Parliament (arrow 2). There is a third flow, through the Commissioner of the Environment and Sustainable Development, who reports annually on the process and provides Parliament with recommendations on the governments management of the environment and sustainable development (arrow 3). Finally, a fourth direction of influence exists, as petitioners influence on Parliament can be translated into top-down oversight of government (arrow 4). The multidirectional influences that the EPP offers for public engagement, while enhancing the potential impacts of the process, also make it difficult to assess the results it achieves. Though anecdotal examples of each can easily be identified, any study attempting to aggregate and assess the overall impacts of the process will have to include a framework that can categorize, standardize, identify, and measure the impacts through four directions of every petition and response.
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Again, as with transparency, the process in theory holds great potential to enhance public participation in environmental governance in Canada, but the facts on the ground cast doubt on its ability to fulfill this potential. Throughout its 15 year history, the CESD has received 350 petitions. The majority of these, however (more than 70%), were received in the 6-year period between 2003 and 2008. It is understandable, even to be expected, that few petitions might be received in the early years of the process before 2003. Of greater concern is the precipitous decline in the number of petitions received since 2008 (see figure 2). In 2009 only 27 were received, and in 2010 only 19, the fewest in a decade. The low number of petitions is cause enough to raise questions about the effectiveness of the process: Can the activity of 19 petitioners truly be considered enhanced public participation?
Number of petitions 60 50 40 30 20 10 0 1 7 11
Petitions to the CESD 1996 - 2010
8 6 9
9 Repeat Petitions 4 23 15 New Petitions
2 1 6
4 41 39
36 37
17 19
26 28
Figure 2 - Petitions received by the CESD since being established
If the number of petitions alone isnt enough to cast doubt, the question of what has caused the sudden drop is. The peak in petition activity of 2008 was followed by a study that found an overall lack of awareness of the process. Since then, petition activity has dropped by more than half, suggesting a further degradation of awareness. More importantly, the drop in activity could be a negative reaction to the perceived (in)effectiveness of the process among the admittedly small community that is even aware of its existence. The CESD enhances public participation in two ways. Firstly, the Commissioner can increase the effectiveness of public participation through the petitions process by highlighting petition topics in the annual reports to Parliament. Doing so heightens the visibility of the issues that matter most to petitioners, encouraging relevant ministries to address them. Between 2001 and 2007, the Commissioner highlighted 40 petitions in annual reports, and action was taken on 35 (CESD, 2007, p. 86). For example, the 2002 report highlighted the issue of mustard gas and other chemical warfare agents dumped off the coasts of Nova Scotia and Newfoundland at the end of world war two (CESD, 2002). In response, the Minister of National Defence initiated a project to assess the risks
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presented by ocean dump sites of warfare agents to the environment and human health and to engage in remediation, cleanup or other mitigation measures. Secondly, the Commissioner provides an additional opportunity for citizen involvement in government scrutiny. If transparency is enhanced by the Commissioner delving deeper into petition issues, public participation is enhanced by petitioners informing the Commissioners work. Audits and studies are powerful tools, and the petitions process presents an additional opportunity for the public to get involved in the scrutiny of government entities, plans, policies and programs. The CESD uses the petitions catalogue to systematically identify issues for audit, integrating the public into the planning process (CESD, 2007, p. 86). The right to request an investigation through the Environmental Commissioner of Ontario, though seemingly similar to the integration of petitions in the CESD audit function, is in practice quite different. That right is explicitly stated in the Environmental Bill of Rights (Environmental Commissioner of Ontario, 2003, p. 22), while the ability to influence audits undertaken by the CESD is more implicit. As there is no requirement in the Auditor General Act to pursue petition topics with audits of the relevant federal agencies, the influence that petitions have on the CESD audit program is entirely dependent on the extent to which the Commissioner takes petitions into account when planning audits. On the other hand, investigations resulting from a request under the EBR are undertaken by the ministry concerned, not an independent audit office. The role of the ECO in this case is more akin to the CESD's role in managing the petitions process, and is limited to ensuring the request meets minimum criteria and forwarding requests to the appropriate ministry. Canadians are similarly able to request investigations in their environmental petitions (CESD, 2008, p. 7), and it is up to the relevant ministries to respond to such requests. The result of a CESD audit is more akin to an investigation by the New Zealand Parliamentary Commissioner for the Environment, which results in publicized reports to Parliament with analysis, advice, and recommendations (New Zealand, 2011). While the New Zealand Commissioner offers an explicit mechanism to Suggest an Investigation, the extent of public participation is not necessarily greater. Just as there is no requirement for the Commissioner to undertake audits of petition topics in Canada, there is no guarantee in New Zealand that suggested investigations will be undertaken. Through the Environmental Petitions Process, citizens can directly influence decisions. The Process is also an avenue for information to enter the decision-making system, allowing petitioners not only to make explicit requests but also to inform the Government and Parliament about the issues that concern them. Once information has entered the system, it flows in many directions. It can impact Government decisions directly, and can move Parliament to exert influence on the Government. The CESD can take up the causes of petitioners, highlighting important issues and giving citizens the opportunity to influence audit choices. 4.3. Accountability Similarly to public participation, accountability can be either top-down or bottom-up (see Figure 1). The mandate of the Office of the Auditor General of Canada includes contributing to political accountability (top-down) by providing Parliament with the
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information it needs to scrutinize the governments performance (OAG, 2004, p. 17). The petitions process performs a parallel function for managerial accountability (bottom-up) by providing citizens with the information they need to scrutinize the governments performance. While sanctions are not necessary components of accountability systems, they can serve to enhance accountability, and citizens control the ultimate sanction. Through general elections, they can hold politicians to account, removing from office those that fail to meet expectations. Accountability arises from other consequences of the petitions process as well, including what Abels calls accountability communication (Abels, 2007, p. 106). The strength of the petitions process is that it goes beyond transparency and provides justifications and explanations, responses to specific questions, interpretations, and in some cases, commitments (CESD, 2005, p. 1). The process meets Abels other accountability requirements as well it is open to the general public, allows the public to make judgements which imply the imposition of sanctions, and deals with matters of public interest and as such contributes to the legitimacy of the decision-making system (Abels, 2007, p. 106). What sets the Canadian process apart from similar processes in enhancing accountability is the obligation for departments and agencies to respond. The German and Scottish petitions systems, as well as the CEC citizen submissions and many others, offer central points of contact to manage citizens concerns, similar to the Commissioner of the Environment and Sustainable Development. Under these other systems, however, though the central point of contact may be required to consider the petitions, there is no legislated requirement that petition issues be investigated or that petitioners receive a meaningful response.19 Whether or not any subsequent actions are taken with regard to a petition is left to the discretion of a parliamentary office, the result of which is that these bodies offer the potential for, but no guarantee of, accountability. Whereas these processes provide a layer of insulation from accountability, Canadas process is mandated and direct. The Commissioner of the Environment and Sustainable Development, the central point of contact, ensures that the petitions meet admissibility requirements. If so, neither the CESD nor the department in question decides whether or not a response is warranted; a response is mandated in the Auditor General Act, guaranteeing that the minister will be held accountable to the public (at least to the extent of providing explanations and justifications and facing implied consequences). Despite the certainty provided by taking discretion out of the equation and mandating a response to every admissible petition, the process cannot hold the Government to account on its own; rather, it provides a mechanism for the people to do so. Because the third pillar is dependent on the first two, the process can only be effective if citizens make use of it, and the doubts cast on the value of the transparency offered by the EPP and the extent of the public engagement with it result in doubts about whether it has in fact contributed to accountability. The small number of petitions received in recent years not
19
Scotlands and Germanys petitions committees may request responses from relevant parliamentary committees or government agencies if they determine such a request is warranted: Regarding Scotland, see (Carman C. J., 2006) 2.3.18; Regarding Germany, see (Bundestag Petitions Committee, 1991) 7.14. The CEC Secretariat may request a response from a Party if they determine such a request is so warranted, and the Party may respond if they wish: See (NAAEC, 1993) Art.14.2 and Art. 14.3. 20 of 26
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only limits the amount of information being generated by the process, but also suggests that too small a portion of the population may be aware of the information generated to create meaningful accountability. The petitions process contributes to political accountability through the Commissioner of the Environment and Sustainable Development, who provides Parliament with the information it needs to hold government accountable. In Philps definition of accountability, a third party Y holds A accountable to M (Philp, 2009, p. 32). In the case of environmental petitions, this third party is the CESD. Petitions are addressed to the Commissioner, who is responsible for determining the relevant departments and agencies, forwarding the petitions, and reviewing responses (CESD, 2008, pp. 8-9). The Commissioner can also identify responses that fail to adequately address petitioners concerns and bring them to the attention of either the responding organization or Parliament (CESD, 2008, p. 9). As outlined in the two preceding sections, CESD audits augment the petitions process with respect to transparency and public participation, and the same is true for accountability. The Commissioner does not investigate or substantiate the claims made in every departmental response (CESD, 2008, p. 8), but does validate those claims when an audit covers an issue on which petitions have been submitted, as well as on a sample basis in annual reports. In 2007, the Commissioner wrote that the Office was systematically using petitions to identify issues for audit (CESD, 2007, p. 86). In those cases, Ministers, departments and agencies are held accountable to the commitments they have made to the public. In keeping with the definitions of accountability found in Section 3, though the Commissioner cannot issue binding sanctions or rewards, his work implies the possibility of sanctions and rewards because it provides the public and Parliament with the raw information it needs to judge the Governments performance. Where departments are effectively addressing issues raised in petitions, their success is reported to Parliament and the public. Conversely, where departments are failing or where there is room for improvement, the Commissioner makes recommendations to Parliament on what can and should be done better. In 2004, for instance, the Commissioner conducted audits of strategic environmental assessment and the management of salmon fisheries. Petitions related to both those issues had been received in the past, and the audits provided an opportunity for the Commissioner to verify the responses to those petitions. The Commissioner found that in the case of environmental assessments, most departments were not making serious efforts to apply cabinet directives, and in the case of the fisheriess that Fisheries and Oceans Canada had missed all the timelines to which it had committed (CESD, 2004). The Environmental Petitions Process gives both Parliamentarians and citizens the information they need to hold the Government accountable. It mandates that Ministers respond to questions about their rationales and processes, the decisions they make, and the impacts and results of those decisions. Both the CESD and petitioners can follow up to hold the Government to account for commitments made through the Process. Overall, the Process enhances the third pillar by subjecting the Government to the first two: by combining the information it makes accessible through its transparency mechanisms with
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the actions it makes possible through its public participation mechanisms. In this way, all three intertwine, depending on and building on each other. 5. Conclusions The Environmental Petitions Process, as shown in this paper, has the potential to enhance what the academic and international communities have identified as the bases for effective environmental governance: transparency, public participation, and accountability. It was established as the culmination of years of international progress and a thorough Parliamentary legislative process. It is both surprising and unfortunate that it has not been the subject of critical analysis until now, and that it is scarcely mentioned in the media and academia. The process can enhance transparency by complementing the Access to Information Act and giving citizens the right to access not only documentary information but also governmental views and positions, explanations, and decision-making rationales. Making the decisions transparent and accessible can increase their legitimacy and provide a mechanism for holding the government accountable. The Commissioner of the Environment and Sustainable Development can further enhance transparency by auditing petition subjects and petitioned agencies and providing independent analysis and interpretation of the results of the process. The ways in which the process contributes to public participation can be placed into two categories. Citizens can make explicit requests or demands in the hopes of directly influencing decisions taken by government, most closely aligned with the Citizen Action conception of public participation. More closely aligned with the Citizen Involvement conception of public participation, citizens can improve the decision-making process by making known the issues that concern them and their opinions on those issues, contributions that are aggregated in the Commissioners annual reports. Citizens can also have a direct impact on the work undertaken by the Commissioner, and the annual report further enhances the impacts of public participation by highlighting the emerging issues most deserving of Parliamentary attention. By increasing transparency and fostering public participation, the process enhances government accountability. It provides citizens with the information they need to scrutinize governments performance, going beyond transparency to allow citizens to ask specific questions, and mandating that the petitioned agencies respond. This allows the public to make judgements which imply the imposition of sanctions. In a parallel fashion, the Commissioner provides Parliament with the information it needs to scrutinize governments performance and hold it accountable. The CESD can identify responses that fail to meet requirements, verify and follow up on claims and commitments made in response to petitions, and conduct audits and studies where necessary to hold government to account. The EPP is a petitions process in the style of Scotland and Germany through which the public can ask questions, make complaints, suggest improvements, and get responses or actions yet it is the only petitions process dedicated solely to matters of environment and sustainable development. Housing it within the Office of the Auditor General under the aegis of the CESD creates an independent investigator in the style of the CEC, and
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the audit function gives it teeth more similar to New Zealands Parliamentary Commissioner for the Environment. Where other petitions committees refer investigations to the ministries being questioned, CESD audits are independent and objective, with a mandate to identify shortcomings and inefficiencies. The process straddles the lines between passive and active transparency; between the sunshine laws so effective in Sweden and the regulatory disclosure found in the United States and Canada; and between citizen action controlled by the public, and citizen involvement initiated by government. With the exception of the 2010 study, where the process has been examined it has been lauded. Federal department officials have said they believe that the petitions process has had an impact on the federal management of environmental and sustainable development issues (CESD, 2007, p. 87). In providing recommendations for reshaping environmental governance in Northern Ireland, Macrory suggests that governments can enhance public influence and connection with government bodies by instituting a petition system, under the auspices of the Audit body, along the lines of the Canadian model (Macrory, 2004, p. 43). However, these instances are few, and as such, inconclusive. The purpose of this paper was to examine how the process might contribute to environmental governance as was intended, and it is clear from this examination that, as designed, it has the potential to do so. There is anecdotal evidence in the form of individual petitions to suggest that they do have the intended effects: A petition on military off-shore dump sites resulted in commitments by the Minister of National Defence to assess and clean up those sites; Audits conducted by the CESD have uncovered instances where Departments have failed to follow through on their commitments to petitioners; A petition regarding the requirements for EIAs in a housing development in British Columbia elicited new information from the Department of Fisheries and Oceans about its responses to proposals by the proponent. However, there is as yet no evidence that the process as a whole has fulfilled its potential. Despite the anecdotal evidence, it is unclear what proportion of petitions has had the intended impacts of enhancing transparency, public participation, or government accountability. In fact, if there is any evidence as to the actual achievements of the process, they may point to the contrary. The only data available about the process are the raw numbers of petitions received over the years: 350 in total, nearly 70% of which were received in the six years between 2003 and 2008, after which the number drops by half in only two years, despite increasing outreach efforts by the CESD. Without more data to analyze, the implication is that the process is so unknown, so little used, that even if every petition submitted achieved each of the objectives for the process, the results might still be inconsequential in terms of a significant national impact. It is impossible to say what impacts the 19 petitions received in 2010 have had. Take for example the issue of shale gas development in Quebec. It is true that petitions on the topic were received at both the provincial and federal levels; that the provincial petition demanded a moratorium on exploration and was followed by a freeze on exploration until environmental studies were conducted; and that the federal petitions questioned the federal governments role and were followed by Parliamentary debate and statements by the Minister suggesting that the federal government was examining its role vis--vis
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provincial jurisdiction. However, it is also true that the shale gas issue was popularized in the mass media, was taken up by a number of citizen groups and NGOs, was recognized at international levels, and that significant impacts had already been seen in other jurisdictions.20 Without more careful study, it is impossible to attribute the actions of the provincial and federal governments directly, or solely, to the petitions. This is but one example of the difficulties posed in measuring the actual achievements of the process. 6. Recommendations for Further Research The initial goal of this paper was to assess whether the Environmental Petitions Process has met its objectives. After identifying the objectives of the process to contribute to sustainable development in Canada by improving environmental governance I proceeded to identify suitable indicators and build a framework around them. These indicators, transparency, public participation and accountability, engaged in complex relationships and were not directly measurable. As a result, before an empirical assessment would be possible, it was necessary to evaluate in what ways and through what mechanisms the EPP could contribute to those three pillars. Due to a dearth in the literature of evaluation or exploration of the petitions process, this paper has been a primary attempt to critically examine its design, its intentions, and its potential. The next step should be to undertake specific analyses of the achievements of the EPP over its 15 year history. Below I describe three potential studies that could constitute critical analyses of the process and lead to identifications of its strengths and weaknesses and suggestions for improvement. At the most fundamental level, raw data need to be generated that can be used to gauge the process impacts on transparency, public participation, and accountability. A set of standardized questions with binary (yes/no) answers could be used to test each petition in a representative sample (or the whole population). Each question would evaluate whether a petition had contributed to a pillar through one of the mechanisms identified in this paper. For example, to test whether a petition had contributed to enhancing transparency, one could ask: Were the petition and response published? Did the response provide factual or evidentiary information that might reasonably not be found in existing documents? Did the response direct the petitioner to publicly accessible information that the public would reasonably not know to access or request? Was the response explanatory (as opposed to documentary)? Did the response provide insight into the decision-making process? Did the petition directly address and/or question a decision-making rationale?
20
France, which has no environmental petitions process, banned hydraulic fracturing (fracking) for shale gas June 2011; The film Gasland which focuses on the impacts of fracking on communities in the United States, won the Special Jury Prize for documentary at the Sundance 2010 international film festival; Greenpeace Quebec submitted evidence to Quebecs Bureau daudiences publiques sur lenvironnement review of the shale gas issue in November 2010. 24 of 26
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Did the response include relevant information taken into account when making a decision?
These questions would not measure the extent or significance of the impact. Rather, by scoring each petition on whether or not it had in any way fulfilled a requirement that could enhance one of the pillars, a rudimentary measure of how many petitions are achieving the objectives could be tallied. Basic analysis could also be conducted on the relationships between the three pillars in petitions by answering the following questions: How many petitions impacted all three pillars? How many petitions impacted only a single pillar? Were impacts on one pillar dependent on impacts on another pillar? o For instance, did a lack of transparency impact preclude an accountability impact?
With regard to environmental impact assessment, 131 petitions have been received, responded to and published as of June 2011. A more specific set of questions would allow an assessment of whether, and how, the petitions process has enhanced the transparency of, public participation in, and accountability through, EIA. A second study should measure the significance of petition topics to the general public. This could be done by identifying the topics addressed by each petition in a sample (or the whole population), and comparing those to: The number of other petitions submitted on the same topic Media uptake of the topic Explicit mention of a petition in the media Citizen groups and NGOs devoted to or addressing the topic
Conversely, an effort might be made to identify the most prevalent issues found in the mainstream media related to environment and sustainable development in Canada, and then to test each to see whether petitions had been submitted relating to those issues. This could gauge the relevance of the process to Canadians, overall awareness of the process, and perhaps in some way the levels of confidence Canadians have in its usefulness. Finally, a third study could be conducted based on the results of the first two to examine the most significant impacts that individual petitions have had on Canadian government. Petitions with the highest scores in the first study could be isolated as a population. This population could then be tested for: Topic convergence: how many of the topics were addressed in multiple petitions? Media uptake Parliamentary debate Public statements by the Government Commitments to action made by the Government Criticisms of Government statements/action/performance levied by opposition parties Criticisms of Government statements/action/performance levied by citizen groups and NGOs
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There are sharp contrasts between the grand potential for the process and the conclusions suggested by the little empirical evidence available. These contrasts can also be seen between the upbeat tone of the annual petitions reports published by the CESD and the criticisms in the Parliamentary study conducted in 2010 (Stokes, 2010). At the very least, these contrasts indicate that more research and a more critical approach to the examination of the process are required, both internally and externally. The process may play an important part in Canadas ongoing struggle to achieve sustainable development, and whether it does is a question that should be answered. Doing so will require not only better analysis of the process, but undoubtedly will also require increased awareness of the process among the general public, the NGO community, and the press. It is my hope that this paper proves to be the first step towards both.
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A. Description of Internship In January 2011 I began an internship with the Commissioner of the Environment and Sustainable Development, at the Office of the Auditor General. The Commissioner is responsible for a wide variety of products, and the department consists of multiple teams working on a number of different projects at any given time. As one of two interns working in the department I performed a broad array of tasks in order to experience all the various types of projects the department undertakes. While I worked with audit teams, assisting with review and analysis of evidence and drafting reports, the majority of my work during my first contract was performed with the environmental petitions team, conducting reviews of petitions received from citizens and the responses provided by federal agencies. Every petition received by the Commissioner is reviewed to ensure that it meets the minimum criteria. Then the relevant federal agencies to which the petition should be forwarded are determined, and potentially volatile issues related to the petition are identified. This review is summarized in a petition submission rationale (PSR) which establishes the rationale for accepting and forwarding the petition based on the legislation and the agencies stated mandates. When responses are received, a petition response review (PRR) is drafted, which assesses the response against a set of criteria and includes the reviewers judgements on the completeness and quality of the response. In addition to writing PSRs and PRRs, I was tasked with two deeper analyses of the petitions process as a whole. The first was an analysis of how petitions are contributing to the broader work of the department. I examined the petitions received over the past year and over the 15 year history of the petitions process, and looked for connections with the audits and studies currently underway and planned for the near future. This analysis revealed that almost all the products being produced or in the pipeline could in some way be traced back to petitions received from the general public, though it was impossible to demonstrate direct causation or even a significant correlation. The second was a comparison of the petitions process and the similar mechanisms of other states, countries, and regional groups. This comparison with similar processes focuses on four fundamental characteristics, and demonstrates specifically how there are no entirely similar processes. For my second contract with the office I was assigned full-time to an audit team. The work began with data analysis and manipulation: consolidating data and information in Excel, conducting basic statistical analysis, and generating charts and graphs. Over time I was given additional responsibilities. I reviewed case files and tested them for compliance with Departmental policies. Based on these file reviews I compiled results and drew preliminary conclusions on Departmental performance, again using statistical analysis combined with professional judgement. I was also responsible to a large extent for tracking and recording correspondence with departments and agencies, keeping track of requests we had made, logging whether requests had been satisfied, and reviewing responses and documents received. I assisted with management of the audit file, a cumbersome and sometimes frustrating task, learning the software system as well as policy and practice. These roles not only allowed me to contribute value-added work to a product which will have real-world impacts, but also exposed me to many facets of the A-1
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Audit Professionals job description. I was fortunate to be given the opportunity to go beyond the usual limits of what a co-op student is asked to do, to take on real responsibilities within the team and respond to deadlines, setbacks, and challenges. It has given me a leg up, in that I have gained more experience that is expected for a co-op student in the office, putting me ahead of others competing for permanent positions with the CESD. It has also given me insight into the inner workings of the office, and allowed me to determine that a permanent position is something to strive for.
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B. Housing development near Mission, British Columbia Petition: No. 122A Issue(s): Biological diversity, compliance and enforcement, fisheries, and environmental assessment Petitioner(s): A Canadian resident Date Received: 22 July 2004 Status: Completed Summary: This petition concerns a proposed housing development near Mission, British Columbia. The petitioner believes that the development will damage the Silvermere/Stave River ecosystem and affect spawning salmon. The area is home to a number of listed endangered species that fledge and forage nearby. The petitioner asks that a statutory review or federal environmental assessment of the development proposal be conducted. Federal Departments Responsible for Reply: Environment Canada, Fisheries and Oceans Canada
Petition
July 5, 2004 Sheila Fraser, Auditor General Commission of Resources and Sustainability Dear Ms. Fraser, I am writing this letter to your office to request an Environmental Petition by the Auditor General in regard of the Silvermere Housing Development application, Mission, B.C. As I understand it, the environmental petition is a process through the Auditor General Act that reviews environmental matters related to sustainable development. My understanding is that both DFO and Environment Canada are accountable for ensuring that the proposed Silvermere development does not cause damage to the Silvermere/Stave River ecosystem. I am hoping that this petition will set in motion a process which ensures that the ministries live up to their responsibilities. According to a report by Dr. M. Rosenau, MWLAP Sept. 10, 2003, the proposed development would cause damage which is "malfeasant and unrecoverable". He described the area as a "biologically rich and unique ecosystem comprised of aquatic, A-3
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terrestrial and avian communities and argued that "the scope of the project is considerably out of line with the environmental values associated with this particular landscape and the extensive amount of damage it will cause". As a resident of the area who has witnessed the salmon spawning, who has seen buses of school children visiting the area to see the spawn, and who has identified and photographed the extensive bird life of the area, Dr. Rosenau's concerns are highly credible and do not exaggerate the importance of the area. The Stave River functions as a salmon spawning ground for 500 - 1,000 000 fish/year and there is heavy spawning areas directly adjacent to the proposed road access. I am very concerned about the impact of runoff from this road on this highly sensitive and productive area. The development also proposes to withdraw water directly from the Stave to service its 100 houses, and then discharge the sewage back into the Stave or Fraser River. This proposal also concerns me as the Stave supports Endangered White Sturgeon whose fry live in the mouth of the river. Local residents tell me that Coho fry have been successfully released into Silvermere Lake. I also understand that construction of a fry ladder may be sufficient to enhance survivability of the fry over the 2 summer months when the lake waters are too warm. The argument that bass in the lake negates the fisheries value makes little sense given that bass are also a protected species under the Fisheries Act. The area is home to several listed species including a large Great Blue Heron colony who fledge their young and forage in the wetlands directly adjacent to the proposed road access and peninsula housing development. The island habitat is unique and includes a mature mixed woodland forest which is also prime owl habitat. Endangered Western Screech Owls and Barn owls inhabit the island. I have enclosed* a photograph of one of a nesting pair of Barn owls which currently occupy a large Maple tree on the Island. In addition to these listed species, the ecosystem supports large number of Eagles and Ospreys. There is an eagle's nest on the island itself. According to Dr. Rosenau's report, the setbacks around the nest site recommended by the developer's consultant are incorrect. I am very concerned that recent activities suggest that DFO is failing to meet its mandate to protect the fisheries and wildlife of this unique watershed. Specifically, Dr. Rosenau's report stated that "removal of vegetation within the 30 meter perimeter area on the island and from the causeway and peninsula will contravene Section 35(1) of the federal Fisheries Act". Despite this, the developer has cleared sections of the peninsula site to within 15 meters from the lake, and has begun removing gravel and soil from Silvermere Island to deposit on the peninsula clearing based on its own privately commissioned environmental assessment. I am concerned that the biologist who wrote the private assessment is in a conflict of interest and is accountable to the developer suggesting a vested interest in down playing the sensitivities of the area. I contacted DFO Feb. 2, 2004 when the clearing took place, and was pleased by the quick response of Craig Sciankowy, who visited the site and sent a letter to the developer warning them that they may be in contravention of the fisheries act and were acting in A-4
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contradiction to the recommendations of both MWLAP and DFO. I was dismayed to see an article March 4, 2004 in the Mission City Record in which a representative from DFO, Dale Patterson, is quoted as saying that "if habitat is lost, a policy can be put in place to make up for it somewhere else". To my knowledge no further action has taken place to assess the damage or reconcile the issue of setbacks. It seems illogical to me that a productive and environmentally important area such as this could be sacrificed to enhance another area, particularly since many mammals and listed birds also depend on the Stave River salmon run. To summarize, I believe that due to the importance and sensitivity of the area, and controversy between differences in recommended setbacks proposed by the environmental consultant hired by the developer, DFO, MALWP and within DFO itself, a statutory review/Canadian Environment Assessment Act review is required before any further environmental damage is done. This review becomes all the more urgent due to a recent announcement by the developer to drain Silvermere Lake later this summer. Please find attached* a copy of Dr. Rosenau's report in regard of this application, a copy of Craig Sciankowy's report following the clearing, a copy of the newspaper article quoting Dale Patterson, DFO and a copy of Genstar's notification of intention to draw down the lake. If you require further information to activate this request, please do not hesitate to call me at [number withheld]. Thank you in advance for your assistance in ensuring that the high environmental values of this unique and important area are safeguarded. Sincerely, [Original signed by petitioner**] *[attachments not posted] **[name and address withheld at petitioner's request]
Minister's Response: Environment Canada

October 29, 2004 Dear [Petitioner]:* I am writing in response to your Environmental Petition No. 122 to the Commissioner of Environment and Sustainable Development, concerning the proposed Silvermere Housing Development in Mission, British Columbia. Your petition was received in the Department on August 6.
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I understand that Genstar Development Company applied to the District of Mission to have the subject property rezoned to allow for future residential development, and that this application process is in the preliminary stages. The District of Mission has referred information related to this application to potentially interested agencies, including Fisheries and Oceans Canada. At this time, no specific project is being proposed by Genstar which would require an environmental assessment under the Canadian Environmental Assessment Act. Should a project proposal be put forward, Fisheries and Oceans Canada, and other federal departments, as appropriate, would review the information to determine whether any authorizations or approvals may be required that would trigger a review under the Canadian Environmental Assessment Act. For example, should an authorization under subsection 35(2) of the Fisheries Act be required for the harmful alteration, disruption or destruction of fish habitat, Fisheries and Oceans Canada would need to ensure an environmental assessment of the project is conducted. An environmental assessment under the Act would include a thorough consideration of the environmental effects of the project. In addition, to meet the requirements of the Species at Risk Act, the assessment would identify any adverse effects of the project on listed wildlife species and its critical habitat. It would also set out measures to avoid or lessen those effects and to monitor them in a way that is consistent with any applicable recovery strategy and action plans. I appreciate your interest in this issue and trust that this information is helpful. Yours sincerely, [Original signed by Stphane Dion, Minister of the Environment] Stphane Dion *[name withheld at request of petitioner]
Minister's Response: Fisheries and Oceans Canada

December 6, 2004 Dear [Petitioner]:* This letter is in response to your environmental petition no. 122 addressed to the Auditor General, concerning the proposed Silvermere Housing Development in Mission, British Columbia. The Commissioner of the Environment and Sustainable Development forwarded your petition to Fisheries and Oceans Canada (DFO) on August 6, 2004.
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DFO has participated in the development of a response with Environment Canada and I would refer you to the response to your petition signed by my colleague, the Honourable Stphane Dion, Minister for Environment Canada. As indicated in the letter from Minister Dion, no specific project proposal has been put forward, DFO has not received an application for a subsection 35(2) authorization under the Fisheries Act, and an environmental assessment under the Canadian Environmental Assessment Act (CEAA) has not been triggered. If DFO receives an application for a subsection 35(2) authorization, the Department will complete the necessary reviews, including, if applicable, an environmental assessment under CEAA. I thank you for your interest in the environment. Yours truly, [Original signed by Geoff Regan, Minister of Fisheries and Oceans] Geoff Regan *[name withheld at request of petitioner]
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C. Follow-up petition on a housing development near Mission, British Columbia Petition: No. 122B Issue(s): Biological diversity, fisheries, water, and environmental assessment Petitioner(s): A Canadian resident Date Received: 4 January 2005 Status: Completed Summary: In this follow-up petition about the proposed Silvermere housing development near Mission, British Columbia, the petitioner is concerned that a proposal to reduce lake water levels and to construct a road will damage the Silvermere Lake/Stave River ecosystem and affect spawning salmon. The petitioner believes that the proposal should require a Fisheries Act permit and asks that a statutory review or federal environmental assessment be conducted on the development proposal. See related petition No. 122A. Federal Departments Responsible for Reply: Fisheries and Oceans Canada
Petition
December 29, 2004 Ms. Adrienne Scott Petitions Coordinator Commissioner of the Environment and Sustainable Development of Canada 240 rue Sparks Street Ottawa, Ontario K1A 0G6 Dear Ms. Scott, Thank you for consideration of my Environmental Petition 122 the Silvermere Housing Development application, Mission, B.C. I received correspondence from Stephane Dion, Environment Canada late October and from Geoff Regan, Minister of Fisheries and Oceans in December. The two Ministers inform me that "no specific proposal has been put forward" and DFO has not received an application for a subsection 35(2) authorization under the Fisheries Act, which would potentially trigger a review under the Canadian Environmental Assessment Act.
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It was my understanding that a project proposal had been submitted but was withdrawn by the developer. Regardless of whether or not final plans for the housing development have been resubmitted, the developer appears to be proposing actions which may adversely affect fish habitat, namely preparing to draw down the lake and construct a road to the island along the northern causeway. They have submitted a plan to drawdown the lake to 2.5 m below the top of the weir and state that this plan awaits approval by DFO (see exhibit 1*). This information was communicated in my original petition, but appears to have been overlooked by both ministers. I wish to emphasize that the causeway/road is directly adjacent to salmon spawning habitat in the Stave River (see map 1*). It has also come to my attention that a natural salmon run has existed in Silvermere Lake itself since 1982 due to the efforts of the Stave Valley Salmonoid Enhancement Society and a local resident (see exhibit 2*). As I indicated in my original petition, I continue to be very concerned about the impact of runoff from this road on this highly sensitive and productive area. Given the sensitivities of the lake and Stave River system, I am confused as to how the lake can be drained and a road constructed to the island without an application for a subsection 35 and request that the ministries re-examine their involvement in this matter. I continue to feel that a statutory review/Environmental Assessment under the Canadian Environmental Assessment Act is appropriate and am hoping that this petition will set in motion a process which ensures that the ministries live up to their responsibilities. Given the time frame for this proposal (to drain the lake this winter), I request that this petition be given urgent consideration to ensure that this fragile and important ecosystem is not adversely impacted. Sincerely, [Original signed by the petitioner] *[attachments not posted] **[personal information withheld at the petitioner's request]

April 15, 2005 Dear [Petitioner]:* This letter is in response to your environmental Petition No. 122B addressed to the Auditor General, concerning the proposed Silvermere Housing Development in Mission,
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British Columbia. Petition 122B is a follow-up to your earlier Petition No. 122, to which I responded on December 6, 2004. In your Petition 122B, you make reference to the April 13, 2004 letter from Genstar to the Silvermere Lake Property Owner's Association, which you feel may have been overlooked in previous correspondence from myself, and my colleague the Honourable Stphane Dion, Minister of the Environment. I can assure you, however, that this correspondence was considered in our previous responses. Nevertheless, I am pleased to provide you with this response in the hope that it will clarify the events that have taken place and the current status of Fisheries and Ocean's (DFO) involvement. On March 31, 2004, an Environmental Management Plan was referred to DFO to conduct a test drawdown, followed by the larger scale drawdown, of Silvermere Lake. The objectives of the larger scale drawdown, as stated in the Genstar letter of April 13, 2004, included:

pond maintenance work, including increasing the lake depth and removing sediments at creek inlets as part of an environmental enhancement program; south causeway dam maintenance work; north causeway maintenance work; control of invasive weed and fish species; archaeological investigations; construction of Highway 7 widening (if approved); and construction of the north causeway widening (if approved).
Based on a review of these objectives and the Environmental Management Plan, DFO, in its letter to Genstar dated April 27, 2004:

did not object to the test drawdown; and objected to the works referred to as Phase II, the larger scale drawdown.
The test drawdown work was carried out in mid-April, 2004. Your original petition to the Auditor General was written on July 5, 2004, after the test drawdown works had been completed. With respect to the large scale drawdown, it was DFO's assessment that the Environmental Management Plan did not provide sufficient information to ensure a clear understanding of the extent of the works and potential impacts to fisheries resources in Silvermere Lake, and the Stave River watershed. The proponent was requested to submit further detail regarding project design and mitigation. As noted in the April 13, 2004 Genstar letter, if the test drawdown was successful, application would be made to undertake a larger scale drawdown. At this time, and as indicated in my December 6, 2004 letter, no specific application or project proposal has been put forward from Genstar for their Silvermere Lake project proposal. DFO has not received an application for a subsection 35(2) Authorization under
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the Fisheries Act, and an environmental assessment under the Canadian Environmental Assessment Act (CEAA) has not been triggered. If DFO receives an application for a subsection 35(2) Authorization, the Department will complete the necessary reviews, including, if applicable, an environmental assessment under the CEAA. I thank you again for your interest in the fish and habitat values of Silvermere Lake, and the adjoining Stave River. Yours truly, [Original signed by Geoff Regan, Minister of Fisheries and Oceans] Geoff Regan *[name and address withheld at petitioner's request]
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D. Follow-up petition on a housing development near Mission, British Columbia Petition: No. 122C Issue(s): Biological diversity, compliance and enforcement, fisheries, and environmental assessment Petitioner(s): Tracy Lyster Date Received: 28 February 2006 Status: Completed Summary: This follow-up petition concerns a housing development project near Mission, B.C., and potential ecological impacts to Silvermere Lake, the Stave River system, and the wildlife and salmon-spawning habitat in this area. The petition calls for a statutory review or environmental assessment under the Canadian Environmental Assessment Act and the protection of several species living in the area under the Species at Risk Act. Federal Departments Responsible for Reply: Environment Canada, Fisheries and Oceans Canada, Transport Canada
Petition
February 20, 2006 Madame Johanne Gelinas Commissioner of the Environment and Sustainable Development of Canada Office of the Auditor General of Canada 240 Rue Sparks Street Ottawa, Ontario K1A 0G6 Dear Madame Gelinas, Thank you for consideration of resubmission of my Environmental Petition 122- the Silvermere Housing Development application, Mission, B.C. I wish to attach my original two petitions 122 and 122B as background information including a report* from senior MWLAP biologist Dr. M. Rosenau who described the proposal as "one of the most environmentally damaging development projects that (he) had occasion to review". Following submission of my original petition I received correspondence from Stephane Dion, Environment Canada late October 2004 and from Geoff Regan, Minister of Fisheries and Oceans in December 2004. The two Ministers informed me that "no specific proposal has been put forward" and DFO has not received an application for a A-12
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subsection 35(2) authorization under the Fisheries Act, which would trigger a review under the Canadian Environmental Assessment Act. Apparently, a project proposal had been submitted to the District of Mission but was withdrawn by the developer after Craig Scainkowy of DFO raised concerns about land clearing which was judged to be in the Fisheries Sensitive Zone of the lake Feb. 17, 2004. I submitted a second petition No. 122B Dec. 29, 2004 after hearing that the developer had informed lakeside residents of its intention to drain Silvermere Lake. I received correspondence April 2005 from Geoff Regan that DFO did not object to a test drawdown but did object to the works referred to as Phase II, the larger scale drawdown. The Minister reiterated that no specific application or project proposal had been put forward from Genstar but that if DFO received an application for subsection 35 (2) authorization, the department would complete the necessary reviews including, if applicable, an environmental assessment under the CEAA. Since that time, a second application from Genstar Development Company has recently been put foreword to the District of Mission which includes 2 more houses on the Island and peninsula than the original plan. A local teacher on behalf of the Stave Valley Salmonoid Enhancement Society is being paid by the developer to conduct "an invasive species study" which gives the appearance of a conflict of interest as future projects conducted by the SVSES are contingent on approval of the development application. Due to the existence of several listed species on the Island including Endangered Western Screech Owls, Barn Owls which nest in large Maple trees on the island (see photo*), and a nearby Great Blue Heron nesting colony, the Island may fall under the protection of the Species at Risk Act (SARA). Other listed species may also inhabit the island. It is my understanding that endangered White Sturgeon fry also inhabit the Stave River immediately adjacent to the Island. I wish to emphasize that the causeway/road is directly adjacent to salmon spawning habitat in the Stave River (see map 1*). I have serous concerns about the impact of both road construction and ongoing runoff from vehicle traffic as well as municipal maintenance such as salting of the road which will no doubt be a source of significant contamination to the area. The water supply for the housing development is proposed to come directly from the Stave River spawning area. The waters upstream of this intake have recently been subject to a leachate breakout from the mission landfill upstream. It has also come to my attention that a natural salmon run has existed in Silvermere Lake itself since 1982. As I indicated in my original petition, I continue to be very concerned about the impact of disturbance on the Island and runoff from the road and on this highly sensitive and productive area. Given the sensitivities of the Lake, the Island, and the Stave River system, and given the discrepancies between recommended setbacks proposed by developer's consultant A-13
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Dr. Rosenau, and various professionals within DFO, I continue to feel that a Statutory Review/Environmental Assessment under the Canadian Environmental Assessment Act, and enactment of the Species At Risk Act is appropriate and necessary. I remain hopeful that this petition will set in motion a process which ensures that this fragile and important ecosystem is not adversely impacted. Sincerely, [Original signed by Tracy Lyster] Tracy Lyster 30227 Malquist Avenue Mission, B.C. V4S 1K1 cc: Nathen Cullen MP *[attachments not posted]

13 July 2006 Ms. Tracy Lyster 30227 Malquist Avenue Mission, British Columbia V4S 1K1 Dear Ms. Lyster: I am writing to provide the Canadian Environmental Assessment Agency's response to your most recent Environmental Petition No. 122C to the Commissioner of Environment and Sustainable Development concerning the proposed Silvermere Housing Development in Mission, BC. Your petition was received in the Department on March 14. Thank you for the background regarding your earlier petitions. Based on our most current information, it is my understanding that the property owner, Genstar Development Company, is currently in the process of preparing an environmental assessment that will evaluate and consider environmental effects of future proposed works in the subject area as part of an overall residential development plan (Silv ermere Housing Development). Should Genstar and/or the District of Mission submit a project plan that would result in the harmful alteration, disruption or destruction of fish habitat, and thereby require a subsection 35(2) Fisheries Act authorization, then the project would
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require an assessment pursuant to the Canadian Environmental Assessment Act (the Act). An environmental assessment pursuant to the Act would include a thorough consideration of all of the potential environmental effects of the project, including any potentially adverse effects to aquatic, terrestrial and avian communities associated with the construction and/or operation of roads (e.g. road runoff), and other residential services such as construction and operation of a domestic water supply. As part of this assessment, Genstar would also be required to comply with the requirements of the Species at Risk Act with respect to adverse effects on listed species such as Western Screech Owls, their critical habitat and the residences of individuals of these species. If the project proceeds, measures must be taken to avoid or lessen effects on listed species in a manner that is consistent with a recovery strategy and to monitor effects on listed species. My officials will continue to monitor this situation to ensure that all federal environmental responsibilities are met. I appreciate this opportunity to respond to your petition and trust that you will find this information helpful. Yours sincerely, [Original signed by Rona Ambrose, Minister of the Environment] Rona Ambrose

17 July 2006 Ms. Tracy Lyster 30227 Malquist Avenue Mission, British Columbia V4S 1K1 Dear Ms. Lyster: Thank you for your most recent Environmental Petition No. 122C to the Commissioner of Environment and Sustainable Development, dated February 20, 2006, concerning the proposed Silvermere Housing Development in Mission, British Columbia. Also, thank you for the background regarding your earlier petitions, and the responses you received from the Minister of Fisheries and Oceans and the Minister of Environment. A-15
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Your letter states that a project proposal that had been submitted to the District of Mission by the property owner and developer, Genstar Development Company (Genstar), was withdrawn after Fisheries and Oceans Canada (DFO) raised concerns regarding land clearing on February 17, 2004. I would like to clarify that, as stated in the two previous responses to you on this issue, DFO has not received a formal notification or referral from either Genstar or from the land use authority (the District of Mission) to initiate a DFO review of the housing development proposal. I have been informed that, according to DFO's most current information, Genstar is in the process of preparing an environmental assessment that will evaluate and consider environmental effects of future proposed works in the subject area, as part of an overall residential development plan (the Silvermere Housing Development). It would, however, be inappropriate for me to comment on the details of a proposal that DFO has not yet had the opportunity to review. Should Genstar and/or the District of Mission submit a project plan that describes works or undertakings that DFO determines would likely result in the harmful alteration, disruption or destruction of fish habitat, requiring a subsection 35(2) Fisheries Act authorization, I can assure you that the need for issuance of such an authorization would trigger an environmental assessment of the proposal pursuant to the Canadian Environmental Assessment Act. As part of this assessment, Genstar would also be required to comply with the requirements of the Species at Risk Act (SARA) with respect to potential adverse effects on listed species, their residences and/or their critical habitat. Mitigation measures would be designed in compliance with the prohibitions in SARA to protect listed species such as the Western Screech Owl. Should you have any further questions regarding DFO's involvement in the review of the Silvermere Housing Development, I would ask that you please contact Craig Sciankowy, in DFO's Mission office, at (604) 814-1079. I thank you for bringing your concerns to my attention, and for your sincere interest in environmental protection. Sincerely, [Original signed by Loyola Hearn, Minister of Fisheries and Oceans] Loyola Hearn, P.C., M.P. c.c. The Honourable Rona Ambrose, P.C., M.P. The Honourable Lawrence Cannon, P.C., M.P. Ms. Johanne Glinas
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Minister's Response: Transport Canada

July 7, 2006 Ms. Tracy Lyster 30227 Malquist Avenue Mission, British Columbia V4S 1K1 Dear Ms. Lyster: I am writing in response to your letter to the Commissioner of the Environment and Sustainable Development concerning the Silvermere Housing Development. The Commissioner forwarded your letter to me on March 14, 2006 as an environmental petition (122C) pursuant to Section 22 of the Auditor General Act. It is noted in your letter that a second application from Genstar Development Company has recently been put forward to the District of Mission. To date, Transport Canada has not received formal notification or referral from either the District of Mission or Genstar Development Company for the proposed Silvermere Housing Development. Transport Canada is responsible for administering the Navigable Waters Protection Act (NWPA). The primary purpose of the NWPA is to protect the public right of safe navigation. An NWPA Approval is required for any works that may constitute a substantial interference to navigation. Should a project plan be received from Genstar or the District of Mission that describes works or undertakings Transport Canada determines would require Approval under Section 5(1) of the Navigable Waters Protection Act, the need for such an Approval would trigger an environmental assessment pursuant to the Canadian Environmental Assessment Act. Thank you for bringing your concerns to Transport Canada's attention. Yours truly, [Original signed by Lawrence Cannon, Minister of Transport, Infrastructure and Communities Transport Canada] The Honourable Lawrence Cannon, P.C., M.P. cc: Ms. Johanne Glinas, Commissioner of Environment and Sustainable Development The Honourable Rona Ambrose, P.C., M.P. The Honourable Loyola Hearne, P.C., M.P.
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E. Follow-up petition on the Silvermere housing development in Mission, British Columbia Petition: No. 122D Issue(s): Biological diversity, compliance and enforcement, environmental assessment, and fisheries Petitioner(s): A Canadian resident Date Received: 29 March 2007 Status: Completed Summary: This follow-up petition concerns a housing development project near Mission, British Columbia, and potential ecological impacts to Silvermere Lake, the Stave River system, and the wildlife and salmon-spawning habitat in this area. The project is currently undergoing an environmental assessment under the Canadian Environmental Assessment Act. The petitioner requests that the project be bumped up and considered by a panel review under the Act and asks for the opportunity to provide input into this process. The petitioner also requests measures be taken by petitioned departments to ensure the protection of several species living in the area under the Species at Risk Act. Federal Departments Responsible for Reply: Environment Canada, Fisheries and Oceans Canada
Petition
27 March 2007 To the Commissioner of the Environment and Sustainable Development Attention: Petitions To whom it may concern, Thank you for accepting my environmental petitions 122-122C in regard of the Silvermere Housing Development in Mission, BC. I understand that Fisheries and Oceans Canada is conducting an environmental screening assessment in regard of the proposal (CEAR reference number 07-01-250024). My understanding is that an application for 35(2) authorization triggered the Environmental Assessment under the CEAA.
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The Stave River estuary in which this development application is situated is extremely sensitive. I understand that DFO is now investigating the recent drawdown of the adjacent Hayward Lake by BC Hydro which is suspected to have Killed numerous fish due to a temporary change in nitrogen eve is of the water. Given the obvious potential for adverse affects, and given the importance of the large salmon spawning area, the public interest needs to be taken into account. I therefore wish to request: 1. that the project be forwarded to a panel review and 2. that I be allowed to provide input into this process. Please submit these questions to DFO and MOE and attach my previous petitions 122122C as background information. I am making this request after reviewing the Dec. 2006 Environmental Impact Assessment by Pottinger Gaherty which describes a specific development proposal for Silvermere. In reviewing this assessment, I was very disappointed to see no evidence that the concerns raised by Dr. Rosenau have been addressed. In fact, this new plan proposes more houses on the Island and Peninsula than the original plan described by Dr. Rosenau as "one of the most environmentally damaging development projects that (he) had occasion to review." In correspondence received by Geoff Regan April 15, 2005, I was assured that DFO did not approve of the larger scaled draw down of the lake, yet a large scaled draw down is planned in this application. In correspondence received by Stephane Dion Oct. 29, 2004, I was assured that the MOE would take steps to protect Species at Risk of which 4 Inhabit or forage in the development area. The steps which are outlined in this proposal appear to indicate that the Barn Owl nesting tree will be removed and replaced with a nesting box somewhere within the development area. No mention is made of tie 2 Cooper's Hawk nests identified in the 2002 Pottinger Gaherty study. The red legged frogs observed in the 2002 study were not discussed in the current assessment. The assessment refers to a "sir all number" of Great Blue Herons which utilize the wetlands. This descriptor is at odds with photographs I have of large numbers of herons foraging in the area adjacent to the proposed road (see attached photo)*. White Sturgeon fry inhabit the waters of the Stave and may also be impacted by the development. COSEWlC has recently proposed the Western Painted Turtle and Brassy Minnow for inclusion in SARA. Both of these species inhabit Silvermere Lake, potentially bringing the number of listed species in the development area to 7. I am particularly concerned by the plan to drain the lake and construct a major road to the Island. This plan triggered the HADD/subsection 35(2) Authorization. The riparian setbacks are described as 22.5M from the high water mark. The proposal appears to indicate that construction activities and permanent structures including a major
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road and boat launches are planned to occur within the setback area and that 7.5M of the total setback is actually the frontage of people's homes. The proposed setback therefore appears to be fragmented and is significantly smaller than the 30M setback recommended by both Dr. Rosenau and Craig Sciankowy of DFO. In my opinion, many questions have not been adequately answered in this development proposal. 3. How exactly did removal of berry bushes with heavy machinery this past summer improve salmon habitat as indicated in the proposal? 4. How will DFO prevent runoff from the road network from entering the water, particular y those areas where the road is within meters of the lake? The road is likely to receive up to 200+car trips/day and will also be subject to sanding and salting by the District. 5. How will DFO prevent future residents from "landscaping" their properties or otherwise improving their views of the lake by removing the vegetation setbacks? How win fertilizers or other gardening chemicals be prevented from entering the lake? 6. What impact would the influx of dogs and cats on this fragile ecosystem have on the current wildlife including the songbirds, small animals and flying squirrels which inhabit the Island? 7. The buffer for the active Bald Eagle's nest is listed as 50M but the scale of the map included in the proposal does not appear consistent with a 50M diameter measured from the base of the fee. Should there not also be buffers around the owl and raptor's nests? Finally, the tone of the assessment appears to indicate a positive impact to fisheries, in part by reconnecting the lake with tributaries on its eastern shore. The future viability of tributaries on t le eastern shore of the lake is far from certain given that at least one major housing subdivision in the area has been approved by Mission which diverts a tributary stream through the middle of the subdivision. Thank you for helping to ensure that the fragile ecosystem of the Stave River Estuary is not damaged. Sincerely, [Original signed by the petitioner] *[name withheld at the petitioner's request] *[attachments not posted]
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2 August 2007 Dear [Petitioner]*: I am pleased to provide Environment Canada's response to your Environmental Petition no. 122D, to the Commissioner of the Environment and Sustainable Development, concerning the proposed Silvermere Housing Development in Mission, British Columbia. Your petition was received by the Department on April 13, 2007. Fisheries and Oceans Canada commenced a screening of the proposed Genstar development project on January 23, 2007, pursuant to the Canadian Environmental Assessment Act (the Act). An environmental assessment under the Act is required for this project because Fisheries and Oceans Canada may issue an authorization under subsection 35(2) of the Fisheries Act, in order for the project to proceed. It is my understanding that the screening is currently on hold, while Genstar revises material in support of the environmental impact assessment for the project. Should Genstar request that the environmental screening continue, Fisheries and Oceans Canada, as the responsible authority under the Act, will assess the potential environmental effects of the project within its mandate and seek expert advice from other federal authorities, such as Environment Canada, and from the Province of British Columbia with respect to matters falling within their respective mandates. Environment Canada's input would include specialist advice on potential effects of the project on wildlife. If the assessment for this project proceeds, a notification of the recommencement will be posted on the Canadian Environmental Assessment Registry's website at www.ceaa.gc.ca/050/index_e.cfm. Information regarding how to obtain materials related to the environmental assessment may be found on the website, and Fisheries and Oceans Canada, as the responsible authority, will decide if there will be an opportunity for public comment. If that department determines that there remain serious outstanding issues, once the environmental screening is completed I may, then, be asked to consider referring the project for further assessment by a mediator or a review panel. Environment Canada's responsibility with respect to the protection of fish-bearing waters is the administration and enforcement of subsection 36(3) of the Fisheries Act, which states that "Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water." Should a deleterious deposit to fish-bearing waters occur, Environment Canada would proceed with enforcement action, as necessary, in accordance with the Compliance and
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Enforcement Policy for the Habitat Protection and Pollution Prevention provisions of the Fisheries Act. Furthermore, section 79 of the Species at Risk Act requires that Environment Canada be informed of potential impacts on any species at risk identified in the environmental assessment process. A subsequent assessment and required mitigation of potential effects on species at risk would fall under the mandate of the competent Ministerthe Minister of Fisheries and Oceans for aquatic species, and the Minister of the Environment for all other species, including migratory birds. With respect to the Species at Risk Act, the federal government works co-operatively with the Province of British Columbia to protect and recover species at risk through the Canada-British Columbia Agreement on Species at Risk. As you have specifically mentioned migratory songbirds in your submission, please note that whether or not an environmental assessment is required for a project, activities must comply with the Migratory Birds Convention Act. I appreciate this opportunity to respond to your petition, and trust that you will find this information helpful. Sincerely, [Original signed by John Baird, Minister of Environment] John Baird, P.C., M.P. c.c.: The Honourable Loyola Hearn, P.C., M.P. Mr. Ronald C. Thompson, Interim Commissioner of the Environment and Sustainable Development *[name withheld at petitioner's request]

July 30, 2007 Dear [Petitioner]*: Thank you for your most recent Environmental Petition No. 122D to the Commissioner of Environment and Sustainable Development, dated March 27, 2007, concerning the proposed Silvermere Housing Development in Mission, British Columbia. Also, thank you for the background information regarding your earlier petitions, and other correspondence relevant to the Project, and photographs of various wild life species.
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Fisheries and Oceans Canada (DFO) has reviewed the December 28, 2006 Environmental Assessment Document submitted by Pottinger Gaherty Environmental Consultants Ltd. and determined that the proposed works will trigger the requirement for a screening level environmental assessment pursuant to the Canadian Environmental Assessment Act (CEAA). Since that time the Proponent has requested that DFO place the project review on hold until further notice. The District of Mission, under the direction of the British Columbia Riparian Area Regulation has created a development bylaw for the purpose of protecting streamside areas, aimed at ensuring that any new developments within the District do not contravene the Fisheries Act. DFO is fully supportive of the District's new bylaw requiring the establishment of riparian setbacks. Should the Proponent request that DFO continue reviewing the project, DFO will assess the potential environmental effects of the project including temporarily draining of Silvermere Lake and constructing a road to the island, as well as all proposed mitigation measures and determine whether or not the project will result in any significant adverse environmental effects, in accordance with CEAA legislation. As part of the CEAA review potential impacts to Species at Risk Act (SARA) listed species and their critical habitats as a result of the project will be carefully considered. DFO will also address the potential environmental effects of the proposed larger scale drawdown of Silvermere Lake, which has not been approved to date. You have identified a number of potential deficiencies within the Environmental Assessment (EA). It is important to note that an EA has not yet been initiated. DFO will ensure that the CEAA review addresses potential environmental effects as well as the proposed implementation of appropriate mitigation, and the cumulative effects for the project prior to making a determination pursuant to CEAA. As already mentioned, this process will be completed once the proponent requests a review of the project information and application. Should the Proponent decide to initiate land clearing within fisheries sensitive areas this summer, DFO will review those proposals pursuant to the federal Fisheries Act. Additionally, DFO will recommend that the Proponent consult with other government agencies whose mandates include the protection of terrestrial species at risk. With regard to your reference to the subdivision east of the Silvermere Lake, where the developer is proposing to divert/relocate a stream channel, DFO supports the concept of relocating the stream in order to enhance the productivity of the stream for fisheries resources; however, DFO has not received nor approved detailed plans for the relocation of the stream. DFO will be working with the District of Mission to ensure that potential impacts to fish and fish habitat are fully mitigated. Finally, the seven specific questions included within the Petition are addressed separately in the attached Annex.
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In closing, I wish to thank you for bringing your concerns to my attention, and for your sincere interest in environmental protection. Should you have any further questions regarding DFO's involvement in the review of the Silvermere Housing Development, please contact Lisa McDonald at (604) 814-1070. Yours sincerely, [Original signed by Loyola Hearn, Minister of Fisheries and Oceans] Loyola Hearn, P.C., M.P. Attachment c.c.: Mr. Ronald C. Thompson, FCA Honourable John Baird, C.P., M.P.
[name withheld at petitioners request]
Annex Items 1 & 2: Your request that the project be forwarded to a panel review and that you be allowed to provide input into this process. Based on the information provided by the proponent and our trigger under the CEAA law list, DFO has determined that a screening level assessment under CEAA is the appropriate track for the review of this development proposal. Through this process, DFO will ensure that any potential effects on fish and fish habitat are avoided or mitigated. The need for a panel review is typically identified after the environmental screening is completed. If after completing the environmental screening for this project, the screening identifies the need for further review, then the responsible authority (DFO) will ask the federal Minister of the Environment to refer the project to a mediator or a review panel. DFO will maintain the CEAA public registry in accordance with the requirements under the Act. Should you wish to provide additional input to this review, please forward your comments to Lisa McDonald, the DFO Habitat Biologist located at the Mission DFO office; 32873 London Avenue, Mission BC V2V 6M7. Item 3: How exactly did removal of berry bushes with heavy machinery this past summer improve salmon habitat as indicated in the proposal? The Himalayan blackberry is an aggressive non-native plant species that competes with native species. The physical works to remove blackberry plants were designed to convert the monoculture of blackberry to a diverse indigenous plant community that will provide full riparian function to Silvermere Lake. All areas where blackberry plants were removed have been replanted with indigenous plant species. A-24
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Item 4: How will DFO prevent runoff from the road network from entering the water, particularly those areas where the road is within metres of the Lake? The road is likely to receive up to 200+ car trips/day and will also be subject to sanding and salting by the District. The Proponent will be required to develop an environmental management plan that will ensure that any surface runoff generated as a result of the design or construction of the Project does not convey any contaminants to receiving waters. Item 5: How will DFO prevent future residents from landscaping their properties or otherwise improving their views of the lake by removing the vegetation setbacks? How will fertilizers or other gardening chemicals be prevented from entering the Lake? DFO will respond to reports of disturbances to vegetation within fisheries sensitive areas such as established streamside protection and enhancement areas, and apply appropriate corrective measures. Further, DFO will recommend that the Proponent register a restrictive covenant on the property(s) land title(s) prohibiting any disturbances to established Streamside Protection and Enhancement Areas. Issues related to water quality such as chemical fertilizers will be managed through Environment Canada. Item 6: What impact would the influx of dogs and cats on this fragile ecosystem have on the current wildlife including songbirds, small animals and flying squirrels which inhabit the island? Please see response for Item 7. Item 7: The buffer for the active Bald Eagle's nest is listed as 50 metres but the scale of the map included in the proposal does not appear consistent with a 50-metre diameter measured from the base of the tree. Should there not also be buffers around the owl and raptor's nests? The small animals and squirrels you mention, as well as the Bald Eagle and other raptor species, are the management responsibility of the Province of British Columbia. You may wish to contact the Honourable Barry Penner, British Columbia's Minister of Environment, with your concerns for these species. During an environmental screening, federal authorities typically consult with their provincial counterparts about such concerns. Migratory songbirds fall within the mandate of the Environment Canada. I trust my colleague, the Honourable John Baird, will respond to your question as it relates to songbirds.
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F. Follow-up petition on a housing development near Mission, British Columbia Petition: 122E Issue(s): Biological diversity, Compliance and enforcement, Environmental assessment and Fisheries Petitioner(s): A Canadian resident Date Received: 25 August 2010 Status: Reply (replies) received but not yet posted Summary: The petitioner is concerned about the potential impact of a housing development project on the Silvermere Lake and lower Stave River ecosystems near Mission, British Columbia. The petitioner is concerned that an environmental assessment of this project, pursuant to the Canadian Environmental Assessment Act, was terminated before it was completed. The petitioner asks Fisheries and Oceans Canada to explain its reasons for terminating the assessment and its plans for enforcing the Fisheries Act. In addition, the petitioner asks Environment Canada about what it is doing to protect species at risk in these ecosystems. Federal Departments Responsible for Reply: Environment Canada, Fisheries and Oceans Canada
Petition
Contact Information: Name of petitioner: [personal information witheld at the petitioners request] Address of petitioner: [personal information witheld at the petitioners request] Telephone number: [personal information witheld at the petitioners request] Email address: [personal information witheld at the petitioners request] Name of group: [personal information witheld at the petitioners request] I hereby submit this petition to the Auditor General of Canada under section 22 of the Auditor General Act. Signature of petitioner: [Original signed by petitioner] Date: July 15 2010 Title of petition: Termination of CEAA for Silvermere island housing development. Attachments: 1. Ministry of Water, Land and Air Protection report Sept. 10, 2003.* A-26
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2. DFO letter to Geoff Croll, Genstar Feb. 17, 2004* 3. District of Mission variance request for development application R02-003, Silvermere Lake/Silvermere Island Jan. 10, 2010* Petitions Manager Commissioner of the Environment and Sustainable Development Office of the Auditor General of Canada 240 Sparks Street, Ottawa K1A 0G6 Dear Ms. Aird, I wish to submit a follow-up petition under section 22 of the Auditor General Act. Please include my previous petitions 122 A-D as background material. Thank you for this opportunity to ensure that the high environmental values of this unique ecosystem are protected. Sincerely, [personal information witheld at the petitioners request] Background Information The Silvermere Island and lower Stave River ecosystem comprises exceptional, rare, and bio-diverse ecological communities and habitats within the lower mainland. Five species of salmon rely on this area for spawning habitat including endangered Fraser River Sockeye, Coho, Spring, Chum, and Chinook. The Stave river estuary is one of a few, if not the single largest, spawning concentrations of salmon along the Pacific coast of North America already in direct proximity to an urban environment. This character makes this 3 or 4 km long ecosystem unprecedented for its kind. Furthermore, despite its extraordinary fisheries values, the lower Stave River basin also has numerous other biological and ecosystem features (aquatic, riparian, terrestrial, upland) that make it exceptional and these are be intimately connected to the marine-derived nutrients supplied by the salmon carcasses. The developers impact assessment submitted by Pottinger Gaherty December 2006 entitled Environmental Impact Assessment Silvermere Development, Mission, BC concluded, Almost the entire site possesses the potential to contain bluelisted plant communities Wildlife surveys identified 113 animal species, including several species of conservation concern: red legged frog (observed in 1999), painted turtle, bald eagle (in particular an active nest), barn owl, western screech owl (unconfirmed owl pellets in 1999), double crested cormorant, and great blue heron. On Oct. 29, 2004, in response to my previous petition I was advised by Minister Stephane Dion that any authorizations or approvals required for this development that would trigger a review under the Canadian Environmental Assessment Act would need to ensure an environmental assessment is conducted. Minister Dion also stated that to meet the requirements of the Species at Risk Act, the assessment would need to identify any adverse effects of the project on listed wildlife and its critical habitat. On July 13, 2006 I received similar assurances from Minister Rona Ambrose that an environmental
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assessment pursuant to the Act would include a thorough consideration of all of the potential environmental effects of the project including any potential adverse effects to aquatic, terrestrial and avian communities associated with the construction and/or operation of roads and other residential services such as construction and operation of a domestic water supply. On Aug. 2, 2007, I was advised by Minister John Baird , P.C., M.P. that the CEAA screening assessment had been put on hold while Genstar revised material in support of the environmental impact assessment. On July 30, 2007 I was advised by Loyola Hearn , Minister of Fisheries and Oceans that DFO has reviewed the December 28, 2006 Environmental Assessment Document submitted by Pottinger Gaherty Environmental Consultants Ltd . and determined that the proposed works will trigger the requirement for a screening level environmental assessment pursuant to the Canadian Environmental Assessment Act (CEAA). Minister Hearn also voiced support of Missions Streamside Protection Regulation bylaw. The CEAA assessment was terminated by DFO on Dec. 22, 2009 without having been completed. Less than a month after termination of the CEAA, on Jan. 18, 2010, Mission Council voted unanimously to vary their Streamside Protection Regulation (SPR) Bylaw on request of Genstar (attached). Mission staffs report in support of the variance referred to Genstars active development application # R02-033. Section 108 of Missions Zoning Bylaw would have required that a setback of 30 meters from the high water mark of Silvermere Lake be protected, consistent with the 30 meter setback recommended by Dr. Rosenau, Ministry Water Land and Air Protection 2003 (attached) and consistent with a letter sent to the developers dated Feb. 17, 2004 by Craig Scainkowy, DFO (attached) following land clearing on the peninsula portion of the development. Mission Council voted to vary the SPR bylaw and allow the use of the Riparian Area Regulation (RAR) method despite staff stating RAR would likely result in reducing the protected areas in half to 15M. Questions to DFO: 1. Did Genstar inform DFO that their proposal was still active prior to the termination of the CEAA? If so, why was the CEAA terminated? If not, why was the CEAA terminated without confirming that the application was still active? 2. Did Genstar inform DFO that they were requesting a variance from Missions Stream Protection bylaw before or after termination of the CEAA? If not, would the CEAA have been terminated had DFO been informed about the variance request? 3. Did DFO authorize clearing of the peninsula to 15 meters from Silvermere Lake or did Genstar clear the riparian area without a 35(2) authorization from DFO? If no authorization was given, why have charges not been laid under the Fisheries Act and reparations not required for the loss of this habitat? 4. Did DFO authorize deposit of fill on the peninsula or did Genstar proceed without DFO authorization? If no authorization was given, why were charges not laid under the Fisheries Act and reparations not required for the soil deposit? 5. Did DFO authorize road construction within the15 meter zone during the Invasive Species study or did Genstar proceed without DFO authorization? I note that the
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study area which included removal of Himalayan blackberries and planting of native species was located on the southern portion of the island, accessible by the south causeway while the road construction occurred on the north end of the island where no blackberry removal or plantings occurred. If no authorization was given, why were charges not laid under the Fisheries Act and reparations not required for the loss of this habitat? 6. What is the response of DFO to the environmental impact assessment submitted by Pottinger Gaherty December 2006 entitled Environmental Impact Assessment Silvermere Development, Mission, BC? (available on request from DFO). 7. The Environmental Impact report referred to above specifies that 7.5 meter building setback is included in the riparian area for the development. Wouldnt Fisheries and Oceans Canada consider a building setback a hardened area as outlined in The Shore Primer Making Amends: Ways to Restore an Altered Shore, 2004? (see http://www.dfo-mpo.gc.ca/regions/central/pub/shorerivages-on/05-eng.htm). 8. 60 meter setbacks for rural areas like Silvermere Island are recommended in the Best Management Practices document Develop with Care: Environmental Guidelines for Urban and Rural Land Development in British Columbia (see http://www.env.gov.bc.ca/wld/documents/bmp/devwithcare2006/DWC%2020 06%20Sec%201%20Introduction.pdf). 30 meter setbacks are recommended for urban areas in this document. Upon notice of termination of the CEAA, I was advised to contact DFO if clearing was occurring in the fisheries sensitive zone. How far from the Stave river is the fisheries sensitive zone? What is DFOs position with respect to setbacks from the Stave River? 9. What is DFOs position with regards to setbacks from Silvermere Lake? How far from Silvermere Lake is the fisheries sensitive zone? 10. Has Genstar been in contact with DFO since the termination of the CEAA? If so, what has been discussed? 11. Genstar has received permission from the District of Mission to utilize the Riparian Area Regulation (RAR) to determine setbacks from Silvermere Lake despite staff stating that it could result in 15 meter setbacks. Does RAR supersede DFO and MOE s prior recommendations for 30 meter setbacks? What is the process for reconciling differences in setbacks? 12. Would a Section 9 British Columbia Water Act approval to work in and about a stream be required to construct a road to the island? Can DFO authorize road construction to the island without a Section 9 approval in place? 13. DFO has promised that road construction to the island would trigger a CEAA. What opportunity will there be for the public to provide input to the CEAA once it is reinitiated? Questions to environment Canada; 1. What powers does Environment Canada have with respect to protection of species at risk in Silvermere Lake and Silvermere Island? 2. I was told by Environment Canada that if species at risk were inadvertently killed by heavy equipment it is not considered an offence under SARA. Is this correct?
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If so, what is the rationale for this statement? If not, how can Environment Canada ensure that painted turtles, red-legged frogs, and the other species at risk in Silvermere Lake and Silvermere Island are not harmed now that the CEAA has been terminated? 3. Is it an offence to destroy habitat of species at risk on Silvermere Lake and Silvermere Island? If so, what is the mechanism for protection of this habitat without an active CEAA in place? 4. An active bald eagle nest is located at the north end of the Island. Under rural Best Management Practices outlined in Develop with Care: Environmental Guidelines for Urban and Rural Land Development in British Columbia (see http://www.env.gov.bc.ca/wld/documents/bmp /devwithcare2006/DWC%202006%20Sec%201%20Introduction.pdf) the allowable landscape-disturbance perimeter for this species is 150 metres for rural areas. What is Environment Canadas recommendation for setbacks from active eagles nests? What is Environment Canadas recommendation for setbacks from the active Barn Owl nest? *[attachments not posted]
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1. Abels, G. (2007). Citizen Involvement in Public Policy-making: Does it Improve Democratic Legitimacy and Accountability? The Case of pTA. Interdisciplinary Information Sciences , 13 (1), 103-116. 2. AIRTF. (2002). Access to Information: Making It Work For Canadians. Report of the Access to Information Review Task Force . Ottawa: Supply and Services Canada. 3. Anonymous. (2011, January 5). Ptition: Exploration et exploitation du gaz de schiste. Retrieved July 21, 2011, from Assemble Nationale du Qubec: https://www.assnat.qc.ca/fr/exprimez-votre-opinion/petition/Petition909/index.html 4. Archambeault, D. S., DeZoort, F. T., & Holt, T. P. (2008). The need for an internal auditor report to external stakeholders to improve governance transparency. Accounting Horizons , 22 (4), 375-388. 5. Arnstein, S. (1969). A Ladder of Citizen Participation. Journal of the American Institute of Planners , 35 (4), 216-224. 6. Ball, C. (2009). What is transparency? Public Integrity , 11 (4), 293-307. 7. Banisar. (2006). Freedom of Information Around the World 2006 - A Global Survey of Access to Government Information Laws.pdf. Retrieved from Transparency International. 8. Banisar, D. (2006). Freedom of Information Around the World 2006 - A Global Survey of Access to Government Information Laws.pdf. Retrieved from Privacy International: Electronic copy available at: http://ssrn.com/abstract=1707336 9. Bdard, J. (2010, December 30). Federal government responsibilities for shale gas extraction in Quebec: No. 308. Retrieved July 21, 20121, from Petitions Catalogue: http://www.oag-bvg.gc.ca/internet/English/pet_308_e_35208.html 10. Bertelsen, S. (2003, August 5). Memorandum: Official Community Plan Amendment Applications, Silvermere Island. Retrieved July 21, 2011, from Fraser Valley Regional District: http://www3.fvrd.bc.ca/Archive/Executive%20Committee/2003/EXEC%202003 %2008%2012/Item%203-2%20OCP%20Amenment%20-%20Mision.PDF 11. Blodgett, E. (2004, September 22). Follow-up petition on federal environmental assessment for a regional road project in St. Albert, Alberta: No. 105B. Retrieved February 18, 2011, from Office of the Auditor General of Canada Environmental Petitions Catalogue: http://www.oagbvg.gc.ca/internet/English/pet_105B_e_28824.html 12. Bovens, M. (2006). Analysing and Assessing PUblic Accountability. A Conceptual Framework. Retrieved February 16, 2011, from European Governance Papers (EUROGOV): http://www.connex-network.org/eurogov/pdf/egp-connex-C-0601.pdf
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13. Breton, S.-P. (2010, December 30). The federal governments role in regulating shale gas exploration in Quebec: No. 307. Retrieved July 21, 2011, from Petitions Catalogue: http://www.oag-bvg.gc.ca/internet/English/pet_307_e_35206.html 14. Bundestag Petitions Committee. (1991). Principles of the Petitions Committee governing the Treatment of Requests and Complaints (Procedural Rules). Retrieved February 7, 2011, from Ombudsman Information Network: http://www.anticorruption.bg/ombudsman/eng/readnews.php?id=6293&lang=en& t_style=tex&l_style=default 15. Canada. (2011). An Act to extend the present laws of Canada that provide access to information under the control of the Government of Canada. Revised Statutes of Canada, 1985. Chapter A-1 . Ottawa: Minister of Justice. 16. Canada. (2010). Auditor General Act. Revised Statutes of Canada, 1985. Chapter A-17 . Ottawa: Minister of Justice. 17. Canada. (2011, June 16). Debates. Retrieved from Parliament. House of Commons: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=5095202&Lan guage=E&Mode=1&Parl=41&Ses=1 18. Carman, C. J. (2006). The Assessment of the Scottish Parliament's Public Petitions System 1999 - 2006. SP Paper 654: Commissioned by the Scottish Parliament Information Centre for the Public Petitions Committee. 19. Carman, C. (2010). The Process is the Reality: Perceptions of Procedural Fairness and Participatory Democracy. Political Studies , 58, 793-751. 20. Cavanagh, M., McGarvey, N., & Shephard, M. (2000). Closing the Democratic Deficit? The First Year of the PUblic Petitions Committee of the Scottish Parliament. Public Policu and Administration , 15 (2), 67-80. 21. CBD. (2010). Clearing-House Mechanism. Retrieved February 14, 2011, from Convention on Biological Diversity: http://www.cbd.int/chm/ 22. CEC. (2000). Bringing the Facts to Light. Retrieved February 10, 2011, from Commission for Environmental Cooperation of North America: http://www.cec.org/Storage/41/3331_Bringing%20the%20Facts_en.pdf 23. CESD. (2007, October). Chapter 2 Environmental Petitions. Report of the Commissioner of the Environment and Sustainable Develpoment to the House of Commons . Ottawa: Office of the Auditor General of Canada. 24. CESD. (2009, Fall). Chapter 4 Environmental Petitions. Report of the Commissioner of the Environment and Sustainable Development to the House of Commons: Fall 2009 . Ottawa: Office of the Auditor General of Canada. 25. CESD. (2008, December). Chapter 5 Annual Report on Environmental Petitions. Report of the Commissioner of the Environmenta and Sustainable Development to the house of Commons . Ottawa: Office of the Auditor General of Canada.
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The Environmental Petitions Process: Enhancing environmental governance through transparency, public participation and accountability Liohn Sherer

EVALUATING THE ENVIRONMENTAL PETITIONS PROCESS ............................ 13

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Liohn Sherer 3.2. Public Participation

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The petitions Catalogue can be accessed at http://www.oag-bvg.gc.ca/internet/English/pet_fs_e_929.html 13 of 26

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See, for example (CESD, 2008, p. 7) 15 of 26

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Petitions to the CESD 1996 - 2010

9 Repeat Petitions 4 23 15 New Petitions

Figure 2 - Petitions received by the CESD since being established

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Minister's Response: Environment Canada

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Minister's Response: Fisheries and Oceans Canada

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Minister's Response: Environment Canada

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Minister's Response: Transport Canada

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